Provisional Thoughts on Limitations to the Right to Procreate

Ja Robinson

doi:10.4314/pelj.v18i2.09

Abstract

The constantly increasing human population results in severe ecological, psychological, political, economic and sociological ramifications. These negative implications raise the question whether the constitutionally entrenched right to make decisions concerning reproduction may be limited, as the continued existence of the State may ultimately be jeopardised if the population is not kept "[d]own to the means of subsistence". An analysis of relevant constitutional provisions shows that in essence it is the "inner sanctum" of the individual which is shielded from erosion by conflicting rights of the community, and that the outward manifestation of the right (procreation) may indeed be limited. However, the so-called Chinese experience shows that negative measures have the desired results but also had a severe non-intended impact on the social and economic situation in China. It is suggested, therefore, that positive measures (eg proper education and social provision) be considered to limit population growth.

Highlights

Since 1950 the world population has multiplied more rapidly than ever before
Hardin's statement encapsulates the thesis for the current research – to what extent does the finite nature of the commons pose a limitation to the right to procreate? Can any choice and decision regarding the establishment and size of a family irrevocably rest with the family itself?12 It is clear that the proverb that every (English-)man's
Mere survival cannot serve as the justification for a social policy to this effect – rather, it is ethical life or whatever may be described as being good that must be protected

Summary

Scope of the rights to privacy and dignity

In Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC) the Court explains that privacy is a right which becomes more intense the closer it moves to the intimate personal sphere of the life of human beings, and less intense as it moves away from that core It concludes that the level of justification for a limitation of the right must be evaluated on an ad hoc basis in the light of all relevant circumstances of each case. From the wording of the section it is clear that by including environmental rights as justiciable, constitutionally protected rights the State requires that environmental considerations be accorded appropriate recognition in the administrative process.66 By necessary implication this means that all government action and legislation must comply with the constitutional right to a healthy environment.. This goal must be achieved by legislation and administrative measures which include inter alia the securing of ecologically sustainable development and the use of natural resources while promoting justifiable economic and social development

Limitation of constitutionally entrenched rights – general background

Conclusion

Findings

Literature