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      Assisted reproductive technologies and the right to reproduce under South African law


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          Reproductive rights in South Africa have traditionally focused on the rights of individuals to avoid reproduction. However, with an increase in the use of assisted reproductive technologies (ART), there has been a shift in the focus on reproductive rights from the rights of individuals to avoid reproduction to the rights of individuals to reproduce noncoitally. With the emergence of new technologies, reproduction by noncoital means and the right to engage in these new technologies is becoming more prevalent. This raises two questions. The first question is whether such a right exists. The recent Constitutional Court decision in AB v Minister of Social Development 2017 3 BCLR 267 (CC) suggests that it does, but only if the person claiming this right is physically involved in the reproductive process. Ostensibly this excludes those who cannot contribute to the reproduction of a child. The second question raised pertains to the impact of this right on specific forms of ART, namely mitochondrial transfer, posthumous reproduction and embryo donation. While the first two forms of ART would meet the criteria set down in AB, embryo donation would not. Individuals denied access to embryo donation could thus not rely on either the right to reproductive autonomy or the right to privacy to aid them. Fortunately the existing legal framework provides some assistance to these individuals, although sadly the same legislative framework does not support the use of mitochondrial transfer and posthumous reproduction. In this respect there is incongruence between rights and legislation, which has only been exacerbated by the recent Constitutional Court decision. What is thus needed is clarity on the meaning of certain rights in respect of certain forms of ART as well as legislative reform to reflect the clarified position.

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          Most cited references64

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          Social and ethical issues in mitochondrial donation.

          The UK is at the forefront of mitochondrial science and is currently the only country in the world to legalize germ-line technologies involving mitochondrial donation. However, concerns have been raised about genetic modification and the 'slippery slope' to designer babies.
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            Human Rights and Reproductive Choice

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              The Bill of Rights Handbook


                Author and article information

                Role: ND
                PER: Potchefstroomse Elektroniese Regsblad
                Publication of North-West University (Potchefstroom Campus) (Potchefstroom, North-West Province, South Africa )
                : 20
                : 1
                : 1-31
                [01] orgnameUniversity of the Western Cape South Africa cavanniekerk@ 123456uwc.ac.za

                This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

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                Figures: 0, Tables: 0, Equations: 0, References: 65, Pages: 31

                SciELO South Africa

                Noncoital reproduction,right to reproduce,right to make decisions regarding reproduction,right to privacy,assisted reproductive technologies,mitochondrial donation,embryo donation,posthumous reproduction


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