Born from bad memories: considering the best interests of children conceived through rape and incest

Abstract

Despite the fact that globally, possibly hundreds of thousands of babies each year are conceived and born from rape and incest, very little research exists as to what are to be considered to be in such children’s best interests. In South Africa, children who are born from rape and incest will be denied a relationship with their biological father since he automatically is not regarded as a parent in these instances. This is not the default position in a few other jurisdictions. The article seeks to explore the rationale for the South African legal position and determines whether the legislative framework provides fairness, justice and certainty in this regard. It examines what the best interests of children born from rape and incest are, and whether these interests are being considered to be of paramount importance, in line with the country’s international and constitutional obligations. Hereafter, the contexts of rape and incest are analysed separately since it is explained that the circumstances during conception, and possibly after the birth of the child, differ. It is argued that, in the case of rape, the South African approach is promoting the best interests and rights of the child. However, the same cannot be said where children are born from certain instances of incestuous relationships. Since some uncertainty exists as to a couple of related aspects, the author calls for legislative amendments and further research to be effected.