Medically assisted reproduction, also known as MAR, refers to various medical procedures designed to assist in conceiving a child. MAR procedures include inter alia artificial insemination, gamete intrafallopian transfer, sperm donation, in vitro fertilisation, surrogacy arrangements, and various other forms of assisted reproductive technology. MAR advancements have created various options and opportunities for the formation of families for many individuals who may otherwise be unable to conceive children naturally.

Despite these medical advancements, MAR also gives rise to complex ethical and legal concerns within South African law. MAR procedures involve deeply intimate decisions concerning bodily autonomy, reproductive choice, and parenthood, all of which intersect with constitutionally protected rights and medical ethics.

One of the most important legal requirements concerning MAR is informed consent. Informed consent is defined in Section 7(3) of the National Health Act No. 61 of 2003 as “consent for the provision of a specified health service given by a person with legal capacity to do so and who has been informed as contemplated in section 6…”

Informed consent must be obtained from all parties involved in the procedure, including surrogates, donors, and recipients. Not only is informed consent an ethical obligation, but it is also a legal requirement to protect constitutional rights such as dignity, bodily integrity, and privacy.

Failure to obtain valid informed consent may have serious legal consequences for fertility clinics and medical practitioners alike. In certain instances, the absence of informed consent may expose healthcare professionals as well as clinics to the risk of civil liability where negligent medical practices cause physical, emotional, or financial harm to patients. In addition, practitioners may also be exposed to criminal liability and the possibility of being charged with sexual assault under section 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. 

Informed consent, or lack thereof, demonstrates the sensitive intersection between assisted reproductive technology, constitutional rights, and medical accountability. 

As reproductive technologies continue to advance, South African law will likely continue to evolve in efforts to balance medical innovation with constitutional rights and individual autonomy.

Kayla Beyer
Candidate Attorney

Photo by Kelly Sikkema on Unsplash