Justice Heilbron delivered the decision at first instance. Her Honour felt that
the phrase ‘child capable of being born alive’, although ‘ambiguous’,90 and
‘capable of different interpretations’,91 should nonetheless be interpreted
consistently with the common law born alive rule.92 Her Honour held that the born
alive rule required that a child actually breathe for it to be said to be ‘born alive’,
and accordingly determined that the capacity to breathe was essential for a child to
be described as ‘capable of being born alive’.9