Who’d have thought there’d be a link between POPIA and the nasciturus fiction? We’ve uncovered one. Let’s start you off with some context. Generally speaking, SA law doesn’t see an unborn child as a legal person with legal rights and responsibilities. But, there’s an exception: the so-called “nasciturus fiction”.

Under the fiction, an unborn child can have certain rights if—when the child is born alive in the legal-technical sense—exercising the rights will be to that child’s advantage. This concept is known as passive legal capacity. Fascinating, right? The law created a mechanism to protect unborn children. But what about personal data rights?

Why does this topic matter?

Factually, unborn children have data that the law ordinarily sees as personal data or information. For example, they have genetic data (DNA), health data (e.g. heart rate), and medical data (e.g. a diagnosis of Down’s Syndrome).

Doctors would ordinarily process this data during prenatal testing. Recently, however, businesses have been selling direct-to-consumer genetic testing kits. The problem is that these kits have lower privacy and security standards than the healthcare system. Plus, there’s also the risk of population screening, that is, where companies or the government assess specific genetic characteristics in unborn children.

A country’s data privacy laws would typically protect these types of data when they identify a living person, e.g. you and me (assuming you’re not a bot viewing this post). However, the challenge is that the law doesn’t see the child as “living” because it is not a legal person. So, strictly speaking, it doesn’t enjoy data privacy rights.  Therefore, the question that follows is whether the law should recognise these data privacy rights.

The thinking underpinning the debate

  1. The Council of Europe recommends considering the medical data of unborn children as if it enjoys the same protection as a minor child’s medical data. Otherwise, there’s a loophole for commercial, research, and medical companies to exploit the data. The proviso is that the unborn child must subsequently be born alive.
  2. POPIA is not clear on this issue, so it’s open to interpretation. The reasoning is that POPIA doesn’t protect the data of deceased people, but it doesn’t explicitly exclude unborn children from its protection.
  3. Conversely, some writers argue that the personal data of unborn children already belong to their mothers. The reason is that some countries treat their data as the mother’s personal data since they fall into her medical files.

Your thoughts

We conducted a LinkedIn poll about your thoughts on the topic. The early results are telling.

POPIA and the nasciturus fiction LinkedIn poll

POPIA and the nasciturus fiction

Practically, the nasciturus fiction is a legal means to achieving data privacy rights for unborn children. But, it isn’t the only means. For example, the Information Regulator or a court could interpret POPIA to apply to unborn children because POPIA doesn’t expressly exclude them.

Our opinion

The truth is that we don’t have enough information to make an informed decision. The debate on this topic has just started. However, we need more research and thought before we or anyone can make the crucial decision about whether unborn children should have personal data rights.

We also need to consider our jurisprudence on privacy and the nasciturus fiction, as well as the court’s role as the upper guardian of all children. SA courts have progressive thoughts on privacy; they’ve even recognised that juristic persons (companies) enjoy privacy rights in some instances. Further, several writers argue that AI should enjoy privacy, so it’s not difficult to acknowledge that unborn children should be protected similarly or even better than AI. However, it’s unclear whether the courts interpret POPIA to extend to unborn children.

Next steps