n Stellenbosch Law Review = Stellenbosch Regstydskrif - Feticide : creating a statutory crime in South African law

Volume 24, Issue 1
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



In the South African case 2008 1 SACR 126 (E) the court considered a set of facts where a third party had been responsible for the death of an unborn during the 38th week of gestation. It is commonly referred to as a case of feticide. The court held that the common-law crime of murder did not include the unborn and it was the responsibility of the legislature to develop the common law. This article aims to investigate the development of a statutory crime of feticide for the protection of the unborn. Some arguments are given as to why the situation of the unborn is different in cases of feticide than in abortion cases. Furthermore, American, English and Canadian jurisprudence is researched in order to compare it with the South African position to assist the legislature in taking urgent action in furthering South African jurisprudence on feticide.

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