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




Journal Title

Journal ISSN



Volume Title


Journal for Juridical Science



Peer reviewed



Despite the fact that, globally, possibly hundreds of thousands of babies each year are conceived and born as a result of rape and incest, there is hardly any research as to what should be considered to be in the best interests of such children. In South Africa, the Children’s Act 38 of 2005 stipulates that children, born as a result of 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 as a result of rape and incest are, and whether these interests are 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, explaining 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 promotes the best interests and rights of the child and balances these rights with those of the child’s biological mother and father, although the position in the case of consensual statutory rape is potentially problematic. However, the same cannot be said where children are born as a result of certain instances of incestuous relationships. Since further uncertainties exist as to several other related aspects pertaining to rape and incest, the author calls for legislative reform to take place following further research into these issues.


open access article


Sexual violence, Parental responsibilities and rights, Best interests of the child


Mills, L. (2023) Born From Bad Memories: Considering the Best Interests of Children Conceived as a Result of Rape and Incest. Journal for Juridical Science, 48 (1), pp. 111-144


Research Institute

Centre for Law, Justice and Society