The nasciturus fiction and the nasciturus rule only help to add confusion to the problem at hand, as they claim that the legal subjectivity should be awarded when it is in the child's best interest. If the nasciturus rule was applied and legal subjectivity was awarded when the children were still in their mother's womb, the requirements for birth which may have previously cast some doubt on whether they are legal subjects, can be disregarded, as the children are not living independently from their mother, or by food from her bloodstream.
The nasciturus fiction could also be followed, but this would mean that legal subjectivity only be awarded after the children have been born and the birth requirements fulfilled. What this indicates is that both points could be used for either side of the argument. This is a further illustration of the many gaps in our South African law regarding this particular issue as there is no cut and dry answer. Another situation one needs to take into account is that perhaps only Tom should be awarded legal subjectivity, as he is the only triplet that fulfils all the requirements to be granted legal subjectivity.
This would entitle Tom to certain rights and duties that his brothers would not be entitled to. This however presents itself as another gap in the law as the law states that all natural persons are legal subjects. Tim and Ted are both natural persons as they are alive, so how would they not be eligible to be legal subjects? This would then be a case of having three separate individuals joined together, but each with different rights, duties and obligations. This would not be a fair representation of our democratic South Africa as we strive for equality.
This matter now becomes extremely complicated because if the law grants all three of the triplets with legal subjectivity, they are in fact going back on their own laws as it could be interpreted that all the requirements for birth have not been successfully completed. This is a clear example of the gaps in the law and how people may interpret the law differently in order to support their own opinion on the matter. The advantages for the triplets to be awarded legal subjectivity are endless.
They would enjoy all the same rights, duties and obligations that all other South Africans do. If the discussion of separation of the triplets came up, they would be able to fight against it, as legal subjects their lives cannot be taken in order to ensure a better life for their brother. If legal subjectivity was not awarded to Tim and Ted, there would be advantages for Tom. He could be sure of a better quality of life, as he would now be independent and able to live his life like all other individual human beings without the excess strain of his two brothers.
Life would be easier to get through as he would not have to face the torment of inquest of society. In many cases, conjoined triplets would be considered outcasts in society, as is the case with Masha and Dasha Krivoshlyapova. 8 These conjoined twins were treated as outcasts in Soviet institutions. They suffered tremendous torture and suffering in their lives as a results of them being conjoined. If this same situation was to happen to Ted, Tim and Tom, much emotional stress would be created that could potentially damage them for the rest of their lives.
If Tom were to live independently of his brothers, he would be able to go about his day just as any other human without the worry of being labelled as an outcast or being treated differently from the rest of society. My opinion on the matter is that each set of conjoined twins is different and so each set would need to be treated differently. In certain cases, the conjoined twins or triplets would prefer to remain joined, as is the case with Lori and Reba Schappell. 9 These conjoined twins are connected with a join at the top of their head.
They chose not to separate and insist that they are happier the way they are as apposed to how they would be separated. Although these sisters wanted to remain conjoined, there are many cases of siblings that are much happier now that they have been separated. An example of this is Hassan and Husein Abdulrehman10. They were joined at the pelvis and chest. These boys were successfully separated at eight months old. These boys are said to feel lucky and proud that they were successfully separated.
Conjoined twins should be given legal subjectivity, as they are all natural persons. If I was a conjoined twin I would want separation, but how would I decide that my life is more important than that of my sibling? The decision whether conjoined siblings should be awarded legal subjectivity is a very controversial topic. The many gaps in the South African law allow for different interpretation, which could in turn result in arguments for and against legal subjectivity being awarded to conjoined siblings.
Deciding whether one human being should be awarded legal subjectivity whilst another should not, is a very complex issue. Quality of life is important to all human beings, but taking another's life in order to better your own is another issue. To conclude I do not believe that there is any definitive answer to deciding the legal subjectivity of conjoined siblings. It appears that the gaps in the law are too frequent and so either side of the argument could be made with equal amounts of support from the law.
What is clear is that the law needs to define itself more clearly as there is no use in sitting on the fence when human lives are steak. The law should work on closing the many gaps in the law there are surrounding this issue. Legal subjectivity is a right we as humans all enjoy. To remove this right from an individual just because they are connected in some shape or form to another should not be the grounds for disqualification of this right.