A human rights analysis of posthumous reproduction in South Africa.
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Date
2018
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Abstract
Advances in the field of medicine are consistently posing difficult questions to
the law and society. This is because of the propensity of these medical
advances to alter the limits of what is and is not possible, and when this
happens we are forced to decide on how these new medical technologies will
be used. It has been said that no use of medical technology poses more
challenging questions than posthumous reproduction. This is because in the
past, the act of reproduction was limited to living persons. However, now
persons can become parents long after they die. This study was prompted by a
case that recently came before the High Court, in which a widow sought to use
her dead husband’s sperm in order to have a child. The court granted her
order, but did not give reasons – thus leaving the rationale behind the decision
unknown. This case came before the court because, in the relevant laws, what
happens to gametes and embryos after the death of the gamete provider is
largely unaddressed.
This study looks at the law relating to posthumous reproduction in 30 foreign
jurisdictions. This investigation reveals that there is no consensus on
regulating posthumous reproduction, and state positions range from highly
permissive regulation based on voluntary guidelines, to highly restrictive
positions enforced by statutes.
In analysing how South African law regards posthumous reproduction, the
study finds there are no legal barriers to posthumous reproduction in South
Africa, and that human rights related to procreative liberty support posthumous
reproduction. The study concludes there is a right to posthumous reproduction,
based on the freedom of testation in relation to reproductive material – which
our law conceives as property – and reproductive autonomy. However, there
are significant gaps in the law in South Africa that ought to be addressed by
legislative reform in order to accommodate the exercising of this right.
Description
Masters Degree. University of KwaZulu-Natal, Durban.