Abstract
In 2012 the Minister of Health made the Regulations Relating to the Artificial Fertilisation of Persons, which provide that the woman who intends to be made pregnant with an in vitro embryo owns such an embryo and can control the embryo's fate in specified ways. Given that in vitro embryos are outside the woman's body, the rationale for these provisions cannot be to protect the woman's bodily integrity. These provisions are, however, problematic from a constitutional perspective, as they: exclude fathers across the board, and impede the right of all intended parents who will not gestate the pregnancy, like surrogacy commissioning parents, to make decisions regarding reproduction – which include the right not to reproduce and hence to veto the further use of an in vitro embryo for reproductive purposes. Robinson argues that the legislative intent with the 2012 Regulations was not to establish ownership of in vitro embryos, and that in vitro embryos are not legal objects (or subjects), but rather form part of the legal subjectivity of their parents. I respond that the language used in the relevant provision is plain and clear in establishing ownership of in vitro embryos, and that in vitro embryos are therefore legal objects. I further suggest that Robinson's proposition of in vitro embryos forming part of the legal subjectivity of their parents may address the gender equality concern with the 2012 Regulations, but that it in turn causes other problems. In particular, Robinson's rationale for his proposition is problematic, as it appears to conflate the embryo with the prospective child. I rely on the important recent judgment in Ex Parte KAF 2019 2 SA 510 (GJ) that held explicitly that the in vitro embryo should not be equated with the prospective child. Finally, I respond to Robinson's critique of my 2005 article, by clarifying the research questions and answers of that article. I highlight the importance of the moral status of the in vitro embryo to legal and ethical debates relating to the in vitro embryo, and invite academic debate on the topic.
Highlights
We are fortunate, to live in an era where the effects of infertility can be ameliorated to a large extent through assistive reproductive technologies
As I have explained above with reference to everyday examples, legal status can refer to any position that something or someone holds in law – legal subject/object status
In my 2005 article I clearly stated that the kind of legal status I would be investigating was whether the pre-embryo is legally protected in any way
Summary
We are fortunate, to live in an era where the effects of infertility can be ameliorated to a large extent through assistive reproductive technologies. In this response article, I set out to defend and expand on my position, and to provide reasons why I do not agree with Robinson's proposition that the in vitro embryo is included in its parents' legal subjectivity. My analysis of the law relating to the embryo's legal subject/object status, including Robinson's arguments in this regard, is presented in Part 4 This is followed in Part 5 by general remarks on the ownership of embryos. I discuss practical questions, such as whether ownership in embryos can be transferred, and highlight some constitutional concerns with the way in which embryo ownership is currently provided for in our law This sets the stage to engage, in Part 6, with Robinson's proposition that an in vitro embryo is part of its parents' legal subjectivity.
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