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

• Date: 01 June 2009
• Pages: 12-19
• Published date: 01 June 2009
• Author: Donrich W. Jordaan
• DOI: 10.10520/EJC64484

Part 1: Ambiguity and common-law

presumptions

1. Introduction

How does the classic conict between freedom and propriety play

itself out in the contemporary South African legal system? I do not

attempt a general answer, but focus this article on one particular

issue: the use of human gametes – sperm and egg cells. I pose the

following question: Is it legal to use one’s own gametes, or others’

gametes with their consent, for non-medical and non-sexual-inter-

course purposes? (Such possible purposes are plentiful, which I

leave to the reader’s imagination.) Using gametes for one’s own

purposes is admittedly not the most pressing social or legal prob-

lem facing our country; yet, as a matter of principle, this issue may

be a test case for how deep our country’s commitment to freedom

really runs. In the memorable words of Mill, freedom entails ‘do-

ing as we like … without impediment from our fellow-creatures, so

long as what we do does not harm them even though they should

think our conduct foolish, perverse, or wrong’ (my emphasis).1

What does the law say about non-medical, non-sexual-inter-

course gamete use? The relevant statutory provision is section

56(1) of the National Heath Act.2 In this article, I argue that the for-

mulation of section 56(1) is ambiguous and admits of two possible

meanings with vastly different consequences upon freedom. My

arguments regarding the interpretation of section 56(1) are pre-

sented in two parts: Part 1 introduces the ambiguity in the Act and

focuses on the traditional common law presumptions of statutory

interpretation; and Part 2 analyses the human rights dimensions of

section 56(1) and concludes with a suggested interpretation.

It should be noted that Chapter 8 of the Act, which includes sec-

tion 56(1), has not yet taken effect: only once regulations relating

to this chapter have been nalised, will this chapter be signed into

effect by the President.3 Several draft regulations relating to Chap-

ter 8 have been published for public comment since the beginning

of 2007.4-6

2. Ambiguous formulation

Section 56(1) of the Act provides the following regarding the use

of gametes:

A person may use … gametes removed … from a living per-

son only for such medical or dental purposes as may be pre-

scribed.

Section 1 of the Act denes ‘prescribed’ as meaning ‘prescribed

by regulation’. What is clear is that section 56(1) is only applicable

to gametes outside the body, and is therefore not applicable to the

use (as a necessary consequence) of gametes for the purpose of

sexual intercourse. What is not clear, however, is whether gametes

outside the human body may only be used for medical or dental

purposes, or whether this section only applies to the kinds of medi-

cal and dental purposes that such gametes may be used for, and it

therefore does not apply to the use of such gametes for non-medi-

cal purposes. The qualication ‘medical or dental’ renders the sen-

tence a classic textbook example of ambiguity: does ‘medical or

dental’ qualify (i) the prescription, i.e. that the regulations are only

intended to prescribe within the parameters of medical and dental

use and that use outside those parameters is per implication not

prescribed and hence permissible (the restrictive interpretation); or

does it qualify (ii) use, i.e. that use is conned to medical or dental

use on a general level and that the regulations will be an additional

layer of specic limitations (the extensive interpretation)?

If the intention of the legislature were the restrictive interpreta-

tion, the following clearer formulation is proposed: ‘A person may

use … gametes removed … from a living person, where such use

is for medical or dental purposes, only as prescribed’. If, however,

the intention of the legislature were the extensive interpretation,

a clearer formulation of such intention would have been: ‘A per-

son may use … gametes removed … from a living person only for

medical or dental purposes, and only as prescribed’.

The nomenclature of purported medical or dental purposes

that are prescribed by the draft Regulations on diagnostic testing,

health research and therapeutics do not assist in solving the am-

biguity – in fact, the formulation of the phrase ‘may be removed or

withdrawn from living persons and used for the following specic

medical and dental purposes’ is similarly open to ambiguous inter-

pretation. Regulation 4 reads as follows:

DNA, RNA, cultured cells, amniocytes, stem cells, gametes,

polar bodies, blastomeres and small tissue biopsies including

single cells from developing blastocysts, may be removed or

withdrawn from living persons and used for the following specic

medical and dental purposes –

This article discusses the classic conict 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 fol-

lowed that answers the core question in the afrmative (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.

The boy and his microscope: Interpreting section 56(1) of the

National Health Act

Donrich W Jordaan, BLC, LLB, MPPS

Head of the Unit for Policy Studies, Centre for International Political Studies, University of Pretoria; CEO of Sylvean Biotech

Article

12 June 2009, Vol. 2, No. 1 SAJBL