LEGAL CONSIDERATION: EVIDENCE OF AN ADVANCE DIRECTIVE FOR POSTHUMOUS REPRODUCTION

Although the Dead are not possessors of Rights, South Africa Law accords weight to be attached to the wishes of the Deceased. The Deceased’s Voice is heard from the grave. No where is this more clearly apparent than in respect of our Laws dealing with Succession where legal consideration is routinely given to the wishes of the Testator of a Will.

It is clear from the foregoing that legal consideration would no doubt be given to the wishes of a Deceased Person in respect of their reproductive rights. This would not however equate to blanket enforcement of the Deceased’s wishes and requirements in respect of their reproductive material as there are a number of ethical considerations that would first need to be taken into account before any legal weight could attach to the express wishes of the Deceased in this regard.

When determining the intention of the Deceased person for a request for Posthumous Reproduction it is critical that all evidence pointing to the Deceased’s Intention is taken into account and considered. From a certainty perspective, the evidence that would, without doubt, carry the most weight in respect of proving the Deceased’s Intention is that of a previously recorded Written Directive.

From a legal perspective and consideration, weight would attach to the Advance Directive that is: