The boy and his microscope: Interpreting section 56(1) of the National Health Act

Abstract

This article looks at the classic conflict between freedom and propriety with reference to the use of human gametes (sperm and egg cells) in the South African law. The core question that is addressed is whether it is legal to use one’s own gametes, or other’s with their consent, for non-medical, non-sexual-intercourse purposes. This question is answered divergently by the two possible interpretations of the relevant statutory law, section 56(1) of the National Health Act, which is formulated ambivalently. Since these two possible interpretations are representative of the two poles of the freedom-propriety conflict, this matter can be perceived as a test of the depth of South African law’s commitment to the principle of freedom. Section 56(1) is analysed using the applicable common law presumptions, as well as human rights. To illustrate the practical implications of these analyses, a hypothetical case study of a boy who studies sperm cells under his microscope at home is sketched and used throughout the article. The analyses conclude that the interpretation must be followed that answers the core question in the affirmative (in favour of freedom), namely that it is indeed legal to use one’s own gametes, or other’s with their consent, for non-medical, non-sexual-intercourse purposes.