A Novel Application of the Hydrostatic Test in Determining Live (Non)-Birth

Abstract

It is important to determine whether a foetus had been born alive since various legal consequences follow upon such a determination. This article is concerned with the determination of live birth in terms of section 239 of the Criminal Procedure Act 51 of 1977 and live non-birth, the latter concept as transpired in the case of S v Mshumpa 2008 (1) SACR 126 (E). The medicolegal importance and risks of the hydrostatic test in determining live birth will be considered and its novel application in determining breathing before birth (live non-birth) for the purpose of criminal proceedings will also be discussed. Reference will be made to case law and legislation from the United Kingdom and selected states from the United States of America in order to show that section 239 of the Criminal Procedure Act 51 of 1977, which requires only that it be proved that a foetus had breathed in order to establish live birth, does not take into consideration the present medical opinion on the matter, or the legal developments with regard to infanticide and the determination of live birth in other jurisdictions.

Keywords: Determination of live birth, hydrostatic test, determine breathing before birth, infanticide, South African criminal procedure