TY - JOUR AU - Thaldar, Donrich PY - 2020/01/17 Y2 - 2024/03/29 TI - The in Vitro Embryo and the Law: The Ownership Issue and a Response to Robinson JF - Potchefstroom Electronic Law Journal JA - PER VL - 23 IS - 0 SE - Notes DO - 10.17159/1727-3781/2020/v23i0a6217 UR - https://perjournal.co.za/article/view/6217 SP - 1-20 AB - <p>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 <em>in vitro</em> embryo owns such an embryo and can control the embryo's fate in specified ways. Given that <em>in vitro</em> 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 <em>not</em> to reproduce and hence to veto the further use of an <em>in vitro</em> embryo for reproductive purposes. Robinson argues that the legislative intent with the 2012 Regulations was not to establish <em>ownership</em> of <em>in vitro</em> embryos, and that <em>in vitro</em> 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 <em>ownership</em> of <em>in vitro</em> embryos, and that <em>in vitro</em> embryos are therefore legal objects. I further suggest that Robinson's proposition of <em>in vitro</em> 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 <em>embryo</em> with the <em>prospective child</em>. I rely on the important recent judgment in <em>Ex Parte KAF</em> 2019 2 SA 510 (GJ) that held explicitly that the <em>in vitro</em> 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 <em>in vitro</em> embryo to legal and ethical debates relating to the <em>in vitro</em> embryo, and invite academic debate on the topic.</p><p>&nbsp;</p><p><a href="https://scholar.google.com/citations?user=C4ZqO54AAAAJ" target="_blank" rel="noopener"><img src="/public/site/images/bontle-1813/GS54.png"></a></p> ER -