During a conversation with a lawyer colleague he threw in a reference to ‘the nasciturus fiction’. Initially, this sounded like the title of the next John Grisham book (“… and now, from the master of the legal thriller, we present The Nasciturus Fiction“), but it turns out to be a legal construct intended to protect the interest of the unborn child.
‘Nasciturus‘ (Latin) effectively means ‘that which will be born’ and, in law, refers to a conceived but as-yet unborn child.
Whilst a child’s legal identity commences at birth, it has long been recognised that events, beneficial or prejudicial, occur before birth, which could have affected the child, had it been born at the time the event took place.
The law therefore acts in the interest of the child by employing the fiction of the child being born at the time of conception, if that is to the child’s legal advantage, as long as he/she is subsequently born alive. (In some jurisdictions, subsequent live birth is no longer required.)
Does this affect you and me? It may well do. My will, and many others, contains a phrase which I have always found rather touching – en ventre sa mere (Fr: literally ‘in the womb of its mother’) – in relation to a child, conceived, but not born, at the time of the testator’s death, which would be entitled to inherit if born alive. The nasciturus fiction in operation.If you found this entry interesting, a mention on Facebook or a tweet would be good! Thanks.