Realising the right to reproduce with assistance in South Africa: a constitutional perspective

Jacobs, C. (2021)

Doctoral Thesis

With advancements in assisted reproductive technologies (ART), more and more individuals across the globe want access to these medical miracles, not only to realise their desire for offspring but also to realise their desires for specific offspring and/or healthy offspring. South Africans are no exception. The challenge posed by this situation is that there is no specific right to reproduce with assistance in this country. Instead, there are certain general constitutional rights which may be interpreted as affording recognition to this right. Moreover, while the current legislative framework permits certain forms of ART, it expressly prohibits others, or it fails to make provision for newer and emerging technologies entirely. As a result, prospective parents are uncertain about the reproductive options available to them. Increasingly individuals are approaching the courts for clarity regarding their rights. The results have however been conflicting. Additionally, divergent views on the applicability of children's rights to prospective offspring is a complicating factor, which has yet to be resolved in South Africa (SA).
This thesis, therefore, attempts to contribute to the existing knowledge on the legal rights of prospective parents to make use of ART in SA. It does so, by firstly exploring the current legal framework for assisted reproduction (AR). It additionally explores the legal implications of AR for the various parties concerned, in particular the prospective parents and the future child; and how their interests are balanced, if at all. What emerges from this investigation is that tension exists between the interests of these parties.
The study further considers the existence of a right to reproduce from a global perspective. Given that there is no such express right, the thesis considers how the right has been given effect to by applying other rights. In this regard five primary rights have been identified, namely the rights to reproductive autonomy, reproductive health care, dignity, equality and privacy. The thesis then examines how the rights identified above have been interpreted to recognise reproductive rights and whether these interpretations would be useful in recognising the right to reproduce with assistance in SA.
The thesis concludes that while the right to reproductive autonomy offers the most recognition to prospective parents’ rights to make use of certain forms of ART, it too is inadequate. To address this shortcoming, the study calls for legislative reform as well as wider interpretations of rights to accommodate various family forms. The need to adopt an interconnected approach that considers both the rights of the prospective parents and the potential offspring is also proposed. This however requires a consistent approach to be applied in respect of the interests of prospective offspring, which is currently lacking. These recommendations would go a long way towards realising the right to reproduce with assistance in SA and it would undoubtedly provide clarity on the existence of this right.

• Right to reproduce
• South Africa
• Assisted reproduction
• Assisted reproductive technologies
• Prospective parents
• Potential offspring
• Right to reproductive autonomy
• Right to privacy
• Right to dignity
• Right to equality

• All authors: Jacobs, C.
• Supervisor: Sloth-Nielsen, J.J.; Liefaard, T.
• Committee: Punselie, E.C.C.; Skelton, A.; Pickles, C.M.; Doek, J.E.
• Qualification: Doctor (dr.)
• Awarding Institution: Institute of Private Law, Faculty of Law, Leiden University
• Date: 2021-11-10