The in Vitro Embryo and the Law: The Ownership Issue and a Response to Robinson




Embryo, moral status, legal status, ownership, artificial fertilisation


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.




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Author Biography

Donrich Thaldar, University of KwaZulu-Natal, Durban.

Senior lecturer, School of Law, University of KwaZulu-Natal, Durban.


Hyun I, Wilkerson A and Johnston J "Embryology Policy: Revisit the 14-Day Rule" 2016 Nature 169-171

Jordaan DW "The Legal Status of the Human Pre-embryo in the Context of the Genetic Revolution" 2005 SALJ 237-249

Jordaan DW "Science Versus Antiscience: The Law on Pre-embryo Experimentation" 2007 SALJ 618-634

Jordaan DW "Criteria for Pre-embryo Research in South Africa: An Analysis within the Paradigm of Respect for the Pre-embryo" 2008 J Med & L 417-437

Jordaan DW "Stem Cell Research, Morality, and Law: An Analysis of Brüstle v Greenpeace from a South African Perspective" 2017 SAJHR 429-451

Kruger H and Skelton A (eds) The Law of Persons in South Africa (Oxford University Press Southern Africa Cape Town 2010)

Robinson R "The Legal Nature of the Embryo: Legal Subject or Legal Object?" 2018 PELJ 1-31

Trounson A "Why do Research on Human Pre-embryos?" in Singer P et al (eds) Embryo Experimentation: Ethical, Legal and Social Issues (Cambridge University Press Cambridge 1990) 14-25

Williams C, Kitzinger J and Henderson L "Envisaging the Embryo in Stem Cell Research: Rhetorical Strategies and Media Reporting of the Ethical Debates" 2003 SHI 793-814

AB v Minister of Social Development 2017 3 SA 570 (CC)

Ex Parte KAF 2019 2 SA 510 (GJ)

Childrens Act 38 of 2005

National Health Act 61 of 2003

Regulations Relating to the Artificial Fertilisation of Persons (GN 1165 in GG 40312 of 30 September 2016)

South African Registry for Assisted Reproductive Techniques 2015 2014 Report accessed 28 November 2019



How to Cite

Thaldar, D. (2020). The in Vitro Embryo and the Law: The Ownership Issue and a Response to Robinson. Potchefstroom Electronic Law Journal, 23, 1–20.