THE LAW ON POSTHUMOUS REPRODUCTION
The previous Article under this Subject dealt briefly with the Law and Ethics on Posthumous Reproduction. This Article deals with the various Laws impacting on Posthumous Reproduction. It is clear from an overview on the Law that South African law does not specifically deal with the concept of Posthumous Reproduction. Any investigation hereon must by necessity take into account the following pieces of Legislation:
- The National Health Act 61 of 2003
- The Regulations Relating to Artificial Fertilization of Persons (2016)
- The Children’s Act 38 of 2005
- The South African Constitution, Act 108 of 1996
LAW: NATIONAL HEALTH ACT (NHA)
When reviewing the Law on Posthumous Reproduction one must by necessity have regard to Chapter 8 of the NHA. Chapter 8 deals with the Control of the Use of Blood, Blood Products, Tissue and Gametes in Humans. Sections 55 and 56 are of particular relevance here and provide as follows:
Removal of tissue, blood, blood products or gametes from living persons
Section 55 reads:
A person may not remove tissue, blood, a blood product, or gametes from the body of another living person for the purposes referred to in Section 56 unless it is done :
(a) with the written consent of the person from whom the tissue, blood, blood product, or gametes are removed in the prescribed manner; and (b) in accordance with the prescribed conditions.
Use of tissue, blood, blood products or gametes removed or withdrawn from living persons
Section 56 reads:
(1) A person may use tissue or gametes removed or blood or a blood product withdrawn from a living person only for such medical or dental purposes as may be prescribed.
(2) (a) Subject to paragraph (b), the following tissue, blood, blood products or gametes may not be removed or withdrawn from a living person for any purpose contemplated in subsection (1):
(i) tissue, blood, a blood product or a gamete from a person who is mentally ill within the meaning of the Mental Health Care Act, 2002
(ii) tissue which is not replaceable by natural processes from a person younger than 18;
(iii) a gamete from a person younger than 18 years; or
(iv) placenta, embryonic or foetal tissue, stem cells, and umbilical cord, excluding umbilical cord progenitor cells.
(b) The Minister may authorize the removal or withdrawal of tissue, blood, a blood product, or gametes contemplated in paragraph (a) and may impose any condition which may be necessary in respect of such removal or withdrawal.
NATIONAL HEALTH ACT & THE LAW ON POSTHUMOUS REPRODUCTION
It is clear from the above that the withdrawal of gametes from a person can only take place if that person is living and above 18 years of age. The law does not permit the withdrawal of gametes from a person who has already died. Insofar as the comatose person is concerned, such withdrawal although legislatively permissible would fail from a common law perspective due to the inability of that person to consent to the said withdrawal. Nothing prevents a party from however approaching the High Court in such a scenario for purposes of obtaining an Order for the said withdrawal. Sufficient grounds would have to be shown that the comatose person’s rights herein would not be jeopardized by such withdrawal based on evidence showing that this was in any event part of their earlier intention. A curator would no doubt be appointed in such a situation to assist the Court and safeguard the interests of the comatose person.
THE REGULATIONS RELATING TO ARTIFICIAL FERTILIZATION OF PERSONS
Removal or withdrawal and storage of gametes
Regulations 4 – sets out the process for gamete retrieval whilst the further Regulations deal with the process for storage and the record-keeping. Regulation 4 reads:
(1) No person, except a competent person, may remove or
withdraw a gamete or cause a gamete to be removed or withdrawn,
from the body of a gamete donor for the purpose of artificial
(2) Once gametes are removed in terms of sub-regulation (1),
they must be stored in a frozen state or cryopreserved.
In terms of the Definitions set out in Section 1 of the Regulation, a “gamete donor” means a living person from whose body a gamete or gametes are removed or withdrawn, for the purpose of artificial fertilization. Artificial fertilization is defined as the introduction other than natural means of a male gamete or gametes into the internal reproductive organs of a female person for the purpose of human reproduction and includes artificial insemination, in vitro fertilization, gamete intrafallopian tube transfer, embryo intrafallopian transfer, or intracytoplasmic sperm injection.
THE REGULATIONS RELATING TO ARTIFICIAL FERTILIZATION OF PERSONS & LAW ON POSTHUMOUS REPRODUCTION
The Regulations are silent on posthumous reproduction. It is clear that nothing contained therein specifically prohibits a fertility specialist from using gametes that were retrieved from the body of a living person upon their subsequent death on the proviso that the said retrieval and storage of gametes took place in accordance with the provisions of the said Regulations. No provision is provided in the Regulations for retrieval of gametes from the body of a dead person for reproductive purposes.
THE SOUTH AFRICAN CONSTITUTION
Section 10 of the Constitution provides that
“Everyone has inherent dignity and the right to have their dignity respected and protected”.
Section 12 of the Constitution provides :
“Everyone has the right to bodily and psychological integrity, which includes theright-(a) to make decisions concerning reproduction; …”
Section 28(1) provides that:
“Every child has the right (a). to a name and a nationality from birth; (b) to family care or parental care, or to appropriate alternative care when removed from the family environment…”
Section 28(2) states that a child’s best interests are of paramount importance in every matter concerning the child.
THE SOUTH AFRICAN CONSTITUTION & LAW ON POSTHUMOUS REPRODUCTION
There is sufficient case law and legislation to show that the dignity rights of an individual person extend beyond their life into their death. This does not however equate to the situation where a deceased person could as a result be deemed to be the holder of positive rights, but it should rather be interpreted that respect and dignity are afforded to their person and to their wishes. Nowhere is this more clear than in the area of Wills and Succession where the deceased’s wishes as to how his estate should devolve are given due recognition and effect, on the proviso that their wishes do not contradict public policy. Reproductive rights exercised during the lifetime of a person and in compliance with the provisions of applicable Law and Regulation would be upheld, in the absence of any other overriding consideration of violation of a child’s best interests or in the face of violation of public policy and the boni mores of society.