Can I sue my ex-partner for the wrongful death of my baby?

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He offered me herbal tablets
He offered me herbal tablets

Every day Parent24 receives stories and questions from readers. Some make us laugh, some make us call a lawyer, and others make us sad.

This letter was particularly heartbreaking. In it, an anonymous woman explains how she lost her baby, and how she believes the miscarriage was caused - purposefully - by her ex-partner.

Clearly grieving, and looking for both emotional and financial support, she has turned to us for legal advice.

We spoke to the professionals at LAW FOR ALL on her behalf, but first, read her story here: 

A very delicate and sensitive matter 

"I need your help in a very delicate and sensitive matter. Earlier this year I was pregnant and having difficulty sleeping.

My ex partner (who was not happy with the pregnancy initially) offered me herbal tablets advising me that he spoke to the pharmacy and it was safe during pregnancy.  

Reluctantly, after a week of no sleep, I accepted the tablet and it worked. Upon my third tablet in a two week space I started experiencing cramping and started spotting.

I then consulted with my gynae who advised me the tablet I was given contains an ingredient which is dangerous during pregnancy.  

The bleeding persisted and I ended up losing my baby.

After this, and Covid-19 following, I went through a lot of emotions. A big part of me feels that my ex partner purposefully gave me the tablet to cause the miscarriage.

I don't have proof but instinct tells me so, because he was not happy initially and wanted me to terminate the pregnancy, which I refused.

He accepted the pregnancy a month later, which is why we got back together. But after I lost the baby, he left.

I was left with payment of all the medical bills relating to my hospitalisation, from when the bleeding occurred and subsequent miscarriage.  

My question is as follows: Can I sue my ex partner for the wrongful death of my baby? Is he partially responsible for half of the medical bill as this was for prenatal care of our baby?"

Parent24 spoke to legal professional at LAW FOR ALL, Zamazulu Nosipho Zulu, who helped us understand this complicated and sad situation. 

"It is common knowledge that during pregnancy there are certain medications which cannot be used by the expectant mother," she told us.

'He who alleges, must prove'  

In this circumstance, the expectant mother had received medication from her then partner who advised her that it was safe for consumption. Unfortunately, the medication was not suitable for pregnant women and led to her losing her baby.

"The principle of law is however clear that "he who alleges, must prove," and unfortunately, in the circumstances, we cannot be certain on the face of the facts provided that the conduct of the father-to-be was wrongful," she says.

There is no clear confirmation that the father-to-be knew that the medication was unsafe and should not be consumed during pregnancy and that he acted maliciously in giving the expectant mother the medication with the intention of harming the foetus.  

"The other side of the coin is this: That there is still a duty on a patient to read the medication insert pamphlet before consuming it especially where they did not have the medication prescribed to them by their doctor," she explains.

Over-the-counter medicines are generally considered off-limits for expectant mothers because of their potential effects on the foetus, so it would be best for the expectant mother to confirm with her doctor if the medication is indeed safe for consumption.

Intention to cause harm

That being said, if the expectant mother is able to get enough proof (such as an admission) that the father-to-be gave her the medication with the intention to cause harm to the foetus, she may be successful in a claim for damages.

"The claim would most likely be a non-patrimonial loss for pain and suffering or emotional shock and trauma," Zulu says. "She will however need the necessary expert(s) report to support her claim as well as assist her with quantifying her claim as a claim for pain and suffering does not sound in money."

And the medical bills? 

The mourning woman also asks if the father-to-be can be held partially responsible for half of the medical bill, as this was for prenatal care of their baby.

"The most important thing to determine here first would be whether there is any legal duty on the father to be to contribute towards prenatal care," Zulu explains.

"In this instance, the expectant parents were not married and in terms of the law, the only one between the two of them who has automatic inference of parental rights and responsibilities, is the mother," she says.

Rights and responsibilities 

Zulu describes how these rights and responsibilities include the following elements: caring of the child, maintaining contact with the child, to act as a guardian over the child and to contribute to the maintenance of the child.

Although the Children’s Act has expanded on the parental rights and responsibilities of unmarried fathers, the same is not automatic, except in very specific instances which are perhaps not applicable here.

These circumstances include:  

1. At the time of the child’s birth, he was living in a life partnership with the mother, i.e. they were living in a de facto husband and wife relationship and chose not to get married;

2. Regardless of whether he was living with the mother or not, he consents to be identified as the father of the child or applies for an amendment to be effected on the birth certificate that he be registered as the biological father of the child in terms of the Births and Deaths Registration Act, or pays damages in terms of customary law; and

3. He contributes or has attempted to contribute in good faith to the upbringing of the child within a reasonable period, and has paid or attempted to pay maintenance. 

Nasciturus fiction 

Zulu says the only way to truly establish whether the expectant father would be responsible for prenatal care is to establish when parental rights and responsibilities vest.

In terms of Nasciturus fiction, a legal principle which explains that foetuses if subsequently born alive, will acquire all of the rights of born children, whenever this is to its advantage.

"In the circumstances, the child was unfortunately not yet born and therefore, it can be argued that the father did not yet have any parental rights and responsibilities," she says. 

This would then make it difficult to claim on the basis of parental responsibility, she says, however if the father-to-be had made an undertaking to the expectant mother to assist, she could be successful with her claim.

Ask us!

Do you have a legal question you need help with? Share your questions via email at chatback@parent24.com and we may speak to a legal professional on your behalf. Anonymous contributions are welcome.

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