Reflecting on law, morality and communal mores (with particular reference to the protection of pre-natal life)

Abstract

This article deals with the relationship between law, morality and communal mores with particular reference to the protection of pre-natal life in South Africa. It is argued that personal, moral choice influences communal mores and that these mores can, in turn, be transformed into legal norms, thus becoming part of the legal system. It is pointed out that South African law lends insufficient protection tofoetal life - especially in situations where it stands to be destroyed as a result of abortion. It is then suggested that the legal subjectivity of the foetus should be recognized and that every application for an abortion should be heard by a court of law or, alternatively, a specialist tribunal. The foetus should be represented at these proceedings by a curator ad litem. It is finally argued that the proposed arrangement will not unduly encroach on the moral freedom of the individual and that personal, moral choice and communal mores will still be of decisive significance in regulating 'bio-ethical' morality.