Strange (and incompatible) bedfellows: The relationship between the National Health Act and the regulations relating to artificial fertilisation of persons, and its impact on individuals engaged in assisted reproduction

Abstract

Individuals are increasingly having recourse to assisted or artificial reproduction in order to realise their desire for offspring. This field is currently regulated by the National Health Act No. 61 of 2003 (NHA, or the Act) and the regulations relating to artificial fertilisation of persons, which form the framework legislation for assisted reproduction. Individuals having recourse to assisted reproductive technologies are therefore forced to engage with this legislation in one way or another. The challenge posed by the current legislative framework is that both the Act and the regulations are unclear and confusing. One could even go so far as to say that they are incompatible in some respects. Matters are further complicated when the Act and the regulations have to be applied alongside legislation such as the Children’s Act No. 38 of 2005. The result is that legislation that is intended to provide legal certainty and clarity has the opposite result. This article considers the Act, its regulations and legislation that has bearing on assisted forms of reproduction. The aim of this analysis is to identify flaws and to provide suggestions for remedying potential defects, in order to produce legislation that not only creates legal certainty, but that is up to date and on par with advances in science and technology.