A human rights analysis of posthumous reproduction in South Africa.

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.