Conjoined siblings are a very rare form of human being. As a result of this, there are many gaps in the law surrounding legal issues of conjoined siblings. These issues include whether the children have been born, if they lived after the birth, if they fulfil certain requirements within their birth and early stages of development. These requirements have only been put in place for children that are born individually and so again there are many gaps in the law when these requirements are put into action with conjoined siblings.
This essay plans to discuss legal subjectivity, how legal subjectivity is acquired and the gaps in South African law regarding these issues. According to Davel and Jordaan1, legal personality is sometimes preferred to describe the legal subjectivity of juristic persons. Considering Tom, Ted and Tim are natural persons, from here on forward, I will refer to their "legal subjectivity" as apposed to their "legal personality". It has generally been agreed that legal subjectivity of a natural person begins at birth. It appears however that there are two conflicting ideas on whether legal personality always starts at birth.
On the one hand, there is the notion that legal subjectivity always starts at birth and on the other hand, it is believed that, in certain circumstances, legal subjectivity may already be present at conception. 2 According to Davel and Jordaan, birth plays a significant role in many areas of our legal system. 3 This plays an important role in our evaluation, for if it agreed that legal subjectivity is instilled from the moment a child is born, it is essential that the term be further explained as this related heavily to the case of the conjoined triplets.
For a child to be considered 'born' it is required that the foetus must be separate from the mothers body. The foetus must also have lived independently after separation, even if this was only for a moment. There is another opinion that there is a third requirement, this is that of 'viability'. 4 This term of 'viability' requires that the foetus has reached a certain stage of development within the mother's body. Essential organs must have formed and the child must be able to live without being fed from the mother's bloodstream.
Although these requirements may seem straightforward now, they become highly conflicting when put into action in the case of the conjoined triplets as different interpretation may lead to gaps in the law. As with any straightforward example, there is always a complication. This time it comes in the form of the "nasciturus fiction" or the "nasciturus rule". These legal terms requires that legal subjectivity be given to the child when it is on the child's best interest.
According to Davel and Jordaan, nasciturus fiction requires that, in certain circumstances, "interests or potential interests are kept open, dependent on the live birth of the child involved"5. This means that the child becomes a legal subject after birth, and as soon as the child is born alive, all the benefits concerned are then allocated to the child. 6 It is important to notice that the nasciturus fiction assumes that legal personality is awarded at birth. The nasciturus rule however makes provisions for "advanced acquisition of legal subjectivity".
7 This means that children may be awarded the benefits of legal subjectivity before they have been born. Now that legal subjectivity is better understood we are now able to evaluate whether Tom, Tim and Ted have legal subjectivity. By looking at the law, one would assume that the triplets are all given legal subjectivity as they are all natural persons, however when one examines the law more closely one can see that there are gaps in the law that can be left open for interpretation.
If one had to follow the law exactly, contrast may occur in the decision whether legal subjectivity should be awarded. This is why it is important to understand that interpretation of the law is important in the decision of whether these conjoined triplets have legal subjectivity in South Africa. If one goes back the requirements for 'birth', one can see that one of the requirements was that the child be able to live independently. If one looks at the case of the conjoined triplets, it is evident that with these triplets, this is not the case.
Tim and Ted are only alive because of a common artery that allows oxygenated blood to circulate, through Tom, for them all. This leaves us with a question, should Tim and Ted be awarded legal subjectivity? Even through Tim and Ted have been separated from their mother they are not self sufficient enough to sustain their own lives, the facts tell us that had the two been born separated from Tom, they would have died shortly after birth. The law does however also state that if the child has lived independently they have been 'born'.
Although these triplets have lived independently from their mother, they have not lived independently and so surely this does not allow them to be granted with legal subjectivity. This is a clear example of a gap in the law where the definition and understanding of the phrase 'to live independently' is completely open to interpretation. The requirements also state that for a child to be considered a legal subject the child must have developed to a stage of viability where the child can live independently from the mother without receiving food from their mother's bloodstream.
There is no indication to say that the child is not to be granted legal subjectivity if they are dependent on another source, like their conjoined sibling for example. This is another example that illustrates how the gap in the law can be interpreted in different ways, resulting in a different outcome for the children in question. This point can be taken further to argue that the triplets should be given legal subjectivity. All three of the triplets had fully developed as they all had their own brain, heart, lungs, arms, legs and other vital organs.
The only thing that kept these children from being ordinary, in the sense that they were born separately, triplets is that they are joined at the neck. If these triplets had been born in unconnected and their births had been successful, all three of the triplets would have been granted legal subjectivity. This is another example of a gap in the South African law, as the law clearly does not specify itself enough to deal with complex cases such as this.