Something old, something new: applying reproductive rights to new reproductive technologies in South Africa

Abstract New reproductive technologies such as in vitro fertilisation have opened up new avenues for those who wish to have children, and who need no longer be bound by biological limitations to procreation like infertility. However, the choices available to prospective parents have been restricted by the fact that the use of new reproductive technologies in artificial reproduction has been subject to regulation in many parts of the world – including South Africa. These regulations have been challenged on the grounds that they infringe upon the rights of those who want to use these technologies. Underlying these challenges is the claim that the rights which are currently given recognition in our law apply to the use of new reproductive technologies – and this article investigates to what extent this claim is applicable with reference to the South African Constitution. Considering the historical context within which reproductive rights have emerged, this article concludes that the right to make decisions concerning reproduction (s 12(2)(a)) and the right to reproductive healthcare (s 27(1)(a)) both protect the freedom of individuals to form families by having children – including where this is done in non-traditional ways that do not involve the use of one’s own body.