By Donrich Thaldar
In July 2022, a legal earthquake hit the South African fertility healthcare sector: The Pretoria High Court struck out the statutory ban on non-medical preimplantation sex selection.
Preimplantation sex selection for non-medical reasons is controversial around the globe, and explicitly banned in several prominent countries, such as Canada and the United Kingdom. However, in most countries, such as the United States, it is not regulated through statute. How did South African law arrive at this dramatic juncture?
In South Africa, over the course of the past decade, a steady stream of judicial decisions on assisted reproductive technology (ART) built a progressive body of case law (notwithstanding one noteworthy exception).
Here are some highlights: Posthumous conception was declared lawful, and subsequently also comatose gamete retrieval for posthumous conception. (This is discussed here and here.)
Next, the court extended the principle that the best interests of the child are paramount to constitutional lawsuits that affect the interests of prospective children. (Unfortunately, the way the majority of the Constitutional Court applied this principle leaves much to be desired — see critiques here, here and here.) Importantly, the court made it clear that the prospective child is a mental construct and cannot be equated to any existing embryo. In other words, protecting the best interests of the prospective child does not translate into protection of an embryo, or into embryonic “interests.” (This is discussed here, here, and here.) And the court held that whether intended parents are gay or straight is of no consequence for the determination of the best interests of the prospective child; and, in the same vein, intended parents need not show that there will be “male” and “female” role-models for a child. In sum, the main gist of these developments was away from traditional notions of how families are constituted, with the best interests of the prospective child being the only legitimate limit on reproductive autonomy.
Considering this jurisprudential history, the decision by the Pretoria High Court to strike out the statutory ban on non-medical preimplantation sex selection may seem like the next logical step in vindicating reproductive autonomy. Yet, it is a big step, because preimplantation sex selection entails the use of ART to determine a trait of the child one wants to have.
The applicant relied on several constitutional rights, but the most salient argument was based on the right to privacy — a classic autonomy right. It is worth unpacking this argument. The applicant framed the narrative away from sexism by emphasizing the fact that there can be a multitude of reasons for wanting a child of a certain sex: It can be a parent wanting a companion of a certain sex, feeling more able to rear a child of a certain sex, wanting to build a family with the desired composition of boys and girls, or even for religious or traditional reasons. The applicant argued that all these reasons are personal decisions that ought to be protected within the ambit of the right to privacy.
The state argued that the right to privacy does not entail that individuals can do whatever they please without regard to the rights of others or the public interest. Non-medical preimplantation sex selection is others-affecting in various ways. For example, it may clash with the beliefs of healthcare practitioners involved; it may have a psychological impact on the children born as a result; and it may even affect the population’s sex ratio. Accordingly, the state argued that non-medical preimplantation sex selection is not protected by the right to privacy.
The court’s judgment can be summarized thus: An essentially private act may have other-regarding consequences, but this does not change its essential nature as being private. Selecting the sex of one’s child is such an act. That said, the state is correct that qualifying for privacy protection does not mean that one can just do what one pleases. The other-regarding consequences can provide a basis for the state to intrude in the private sphere. However, the state failed to place evidence before the court to show that the feared-for other-regarding consequences are anything more than speculation. As such, the court held in favor of the applicant that the ban on non-medical preimplantation sex selection is an unjustified infringement of the right to privacy, and therefore unconstitutional.
But, what about the use of ART — how did it affect the constitutional analysis? In its judgment, the court embraced of the use of new reproductive technologies. For example:
Sex selection can be understood as part of reproductive autonomy — the decision if and how to have offspring. The available technology just increased the number of options, thereby increasing reproductive liberty.
This will become a powerful precedent in the coming legal battles for access by intended parents to use genome editing technologies, such as CRISPR-Cas9. Once such technology is sufficiently safe and effective, it is doubtful whether a (hypothetical) general statutory ban on it in South Africa can withstand constitutional scrutiny. Instead, genome editing technology should be regulated in a way that respects prospective parents’ reproductive autonomy to use it. This means that a ban on genome editing technology would only be justified in specific instances where the technology is used to cause harm to the prospective child.
The idea that the ambit and meaning of human rights are in perpetual flux and ought to develop in step with advances in society is an established principle in South African constitutional jurisprudence. An eloquent statement of this principle is found in the judgment that legalized same-sex marriage in South Africa in 2005:
Indeed, rights by their nature will atrophy if they are frozen. As the conditions of humanity alter and as ideas of justice and equity evolve, so do concepts of rights take on new texture and meaning. The horizon of rights is as limitless as the hopes and expectations of humanity.
