The boy and his microscope : interpreting section 56(1) of the National Health Act

Abstract

This article discusses the classic conflict between freedom and propriety with reference to the use of human gametes (sperm and egg cells) in South African law. The core question addressed is whether it is legal to use one’s own gametes, or others’ with their consent, for non-medical, non-sexual-intercourse purposes. This question is answered divergently by the two possible interpretations of the relevant statutory law – section 56(1) of the National Health Act – which is ambivalent. Since these two possible interpretations are representative of the two poles of the freedom v. propriety dichotomy, this matter can be perceived as a test of the depth of the South African juristic commitment to the principle of freedom. Section 56(1) is analysed, using the applicable common law presumptions as well as human rights. To illustrate the practical implications of these analyses, a hypothetical case study of a boy who studies human spermatozoa under his microscope at home is outlined and used throughout the article. The analyses conclude that the interpretation must be followed that answers the core question in the affirmative (in favour of freedom), namely that it is indeed legal to use one’s own gametes, or others’ with their consent, for non-medical, non-sexual-intercourse purposes.