Behaviour modification by genetic intervention--the law's response.

The Human Genome Initiative has stimulated research worldwide into mankind's genetic structure. It has led to identifying and understanding the function of many genes which cause illnesses, deformities, organ malfunctions and, more recently, behavioural aberrations. The science of gene therapy has developed in tandem and has initiated therapeutic treatment by the replacement of defective genes in humans. In the legal sphere guidelines for the application of gene therapy have been recommended by the Council of Europe, the United Kingdom, France, Denmark and the United States amongst others. South Africa has adopted the guidelines of the American National Institutes of Health. It is however submitted that third world countries such as South Africa have many other more basic health care problems on which to spend their limited resources despite having the technology to practise gene therapy.

The impact of genetics on society: the law's response.

Technology has provided man with the ability to manipulate the genetic structure of the human race. The knowledge which geneticists have gained and will gain in future will raise numerous legal and ethical problems which will have to be debated and resolved within the parameters of the prevailing boni mores.

Is the foetal alcohol syndrome child protected by South African law?

It is scientifically indisputable that excessive use of alcohol or drugs during pregnancy causes defects in the children who are subsequently born to the abusing mothers. In the United States any legislative intervention by a state during the pregnancy would affect the rights of both the mother and the foetus. In order to remain within the bounds of constitutionality any maternal health legislation would have to strike a clear balance between the mother's rights to reproductive and familial privacy and bodily integrity guaranteed by the Fourteenth Amendment and the state's right to protect the foetus. This balance is currently achieved in terms of the framework set out by the Supreme Court in Roe v Wade 410 US 113 (1973). Although South African legislation cannot as yet be tested for its constitutionality the basic problem of balancing the rights of the mother, the foetus and the state remain the same. South Africa enjoys an advantage which the United States of America does not, viz the common-law remedies presented by the Aquilian action and the actio injuriarum. Only a person can be the bearer of rights and can thus invoke an action to protect those rights. It is thus necessary to determine whether the nasciturus fiction as enunciated in D 1.5.7 would enable a foetus (via a curator ad litem) to enforce rights against its mother. It is submitted that an extension of certain principles in the decisions of our Supreme Court in Christian League of Southern Africa v Rall 1981 (2) SA 821 (O), Wood v Ondangwa Tribal Authority 1975 (2) SA 294 (A) and Clark v Hurst NO 1992 (4) SA 630 (D) coupled to the nasciturus fiction are indicative of the fact that a foetus may enjoy protection against drug abuse by its mother prior to its birth.

To clone or not to clone--whither the law?

The cloning of Dolly the lamb from adult cells by scientists at the Roslin Laboratories near Edinburgh in February 1997 has startled the world because it now opens the way to clone adult human beings. The reaction to Ian Wilmut's breakthrough has been instant and largely negative. Bills were rushed into both the US Senate and House of Representatives aimed at banning the cloning of human beings. Human cloning is premature at this stage, but there are many positive spin-offs of cloning in the field of genetic engineering, such as the production of human proteins such as blood clotting factors which aid in healing wounds. Progress by means of cloning can also be made into devising a cure for Parkinson's Disease amongst others. No lesser ethicist than John C. Fletcher of the University of Virginia foresees circumstances in which human cloning is acceptable e.g. to enable a couple to replace a dying child, to enable a couple, one of whom is infertile, to clone a child from either partner. Extensive regulation of cloning by the law is inevitable but, in doing so, the legislation should be careful not to outlaw research in this area which could be beneficial to mankind.

Artificial wombs: medical miracle, legal nightmare.

The fact that the development of the artificial uterus is nearing completion is a mixed blessing. It will provide numerous benefits within the field of pediatric medicine, such as ensuring normal development to term of extremely premature foetuses, but it will pose numerous problems which the law is ill-equipped to handle. The legislature will have to examine the current definition of 'parent' which is based on normal conception practices. It will also have to determine whether only married couples should have access to this technology and under which conditions.

Artificial reproduction and the family of the future.

The techniques of artificial reproduction have until fairly recently been geared to overcoming male sterility by means of AID and IPSI and female sterility by way of GIFT, VISPER and DIPI. The above techniques have concentrated on achieving conception either within or without the uterus. Gestation has always been completed in utero and the therapy was reserved for married couples. The above circumstances only required limited legal regulation and its effect on the family unit was minimal because the child was mostly conceived from the gametes of its parents New technologies which are looming on the horizon, however, threaten to change the concept of parent and family radically. I refer to the imminent perfection of the artificial uterus and the cloning of human cells. If these technologies are sanctioned, a child would be conceived from the cells of one parent only and will not be gestated within the mother's womb. How will society and the law react to these technologies? Will they regulate them or proscribe them? I will argue in favour of the former rather than the latter.

The role of the artificial uterus in embryo adoption and neonatal intensive care.

Embryo adoption is a way of having children for couples who wish to share a pregnancy experience but have neither eggs nor sperm to realise their dream. This type of situation could occur where the wife has had a hysterectomy, while her husband has an extremely low sperm count. The donors of embryos are usually couples who have completed their families. The artificial womb will duplicate the technology of a natural womb so as to enable the child to gestate and develop physically to maturity. This ability will enable the artificial womb to be used to rescue severely premature babies who would otherwise have died and allow them to develop normally to term. Legislation will be required to regulate situations where an entire pregnancy is sustained in an artificial uterus. Clarity as to parenthood in particular will need to be regulated.

The right to be born: surrogacy and the legal control of human fertility.

South African law, in common with many other legal systems, has exercised a strong measure of control over the fertility of its citizens via the sanction of illegitimacy and the prohibition of marriage (and hence legitimate children) between certain persons, e.g. those who fall within the so-called prohibited degrees of relationship. Until last year, when the Mixed Marriages Act was abolished, marriage across the colour line was prohibited in South Africa. The requirement of a valid consent by both prospective spouses in order to enter into marriage further excludes certain categories of persons from procreating legitimate children, e.g. the insane and mentally feeble, while the requirement of consummation will exclude certain categories of paraplegics from solemnizing a valid marriage. Age restrictions on marriages and the requirement of parental consent for minors are further factors limiting the individual's freedom to procreate. These restrictions have a well-established historical basis extending over many hundreds of years. They can be broadly categorised as having as their objective the preservation of the family unit. The above provisions were formulated at a time when the law never contemplated the spectacular advances in human biology that have produced the numerous artificial forms of conception, such as AID, IVF and surrogacy. The legislature, both in South Africa and elsewhere, at first adopted a neutral approach to this new fertility revolution and watched the courts struggle to adapt outmoded principles to the new technology. Legislation relating to AID and IVF eventually appeared in many jurisdictions; as a result of its delayed introduction public opinion had been educated to accept the new techniques and the legislation is by and large favourable to these new techniques. Not so, however, as far as surrogacy is concerned. South Africa, England and Australia have produced essentially negative legislation on this subject. Certain American states, however, have adopted progressive legislation accepting surrogacy. The merits of surrogacy are discussed and it is submitted that it should be condoned by the South African legislature under certain circumstances, as it can fall in the scope of furthering the interests of the family unit.