Ingeligte toestemming by die voortplantingsregte van vroue met intellektuele gestremdhede in Suid-Afrika : 'n Wekroep tot regshervorming

Abstract

This research is focused on establishing the nature, content and extent of the reproductive rights of women with intellectual disabilities, and on investigating the doctrine of informed consent as it applies to the reproductive rights of these women. To this end, an integrated analysis of all the ethico-legal measures in health law is pursued to establish a harmonised and coherent understanding of the total regulatory framework governing this matter. A human rights based approach serves as the methodological foundation for this dissertation, allowing those human rights and fundamental freedoms contained in South African law to be directly applied to the research topic. Although this study is conducted with specific reference to the involuntary sterilisation of women with intellectual disabilities, the relevance of the fundamental aspects of this research for investigations into other reproductive rights of women with intellectual disabilities stands to reason. The study follows an integrated approach, allowing the researcher to consider the multi-layered provisions of the South African law in terms of those of the Constitution of the Republic of South Africa, 1996, which is the supreme force of law. By first explaining the social foundations on which the research topic is grounded, a backdrop was created that allows for a critical analysis of the substantive provisions of the South African regulatory framework. The medico-legal doctrine of informed consent is studied with specific reference to persons with intellectual disabilities and their reproductive rights. This is done within a legal framework considering the provisions of the applicable common law, legislation, case law and the principles of medical ethics. In addition, the provisions of three relevant international human rights treaties are also discussed in terms of their bearing on the intersectional aspects of women with intellectual disabilities in Africa, and their meaning and validity within the context of the South African regulatory framework. The relevant determinations of the Bill of Rights are also analysed and discussed, together with other national legislation of the Republic. Complementary to this legal perspective, the matter is viewed from a medical perspective by considering the ethical principles adopted by the medical profession, especially those rules applied by the Health Professions Council of South Africa, in a brief discussion of views on the involuntary sterilisation of women with intellectual disabilities. This multi-layered analytical approach exposed the shortcomings of the Sterilisation Act of 1998, prompting the formulation of four suggestions for law reform. It is hoped that this study (and the suggestions contained herein) will serve as a call for law reform, and will be influential in the revision of legislation concerning the reproductive rights of persons with intellectual disabilities in South Africa.