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Science versus anti-science : the law on pre-embryo experimentation

  • Journal Title: South African Law Journal
  • Volume: Volume 124
  • Issue:  Issue 3
  • Publication Date: 2007
  • Pages: 618  - 634
  • Authors:  Donrich W. Jordaan;
  • ISSN: 02582503
  • Abstract:  The central thesis of this article is that the constitutional right to freedom of scientific research in South Africa is trampled on by traditional notions about the moral status of the pre-embryo. The discussion commences with a background sketch of how bioethics was propelled onto the public policy agenda in the late seventies, and of the groundbreaking work of the Warnock Committee in the UK. This is followed by an analysis of the relevant international legal and policy instruments, which concludes that there currently is no international legal position on the permissibility of embryo research. The focus then shifts to the South African legal position : the Medical Research Council's ethics guidelines, which complement the Human Health Act, are attacked as lacking scientific substance and as based on prejudice and superstition. The ban imposed by these guidelines on creating embryos for research purposes is exposed as informed by irrational values and as violating the right to freedom of scientific research. In response to arguments put forward by other writers, it is demonstrated that pre-embryos do not have legal personality and have no valid legal claim to human dignity. On the other hand, it is pointed out, freedom of scientific research is intimately connected to human dignity. The article concludes that the current legal position regarding pre-embryo research infringes the right to freedom of scientific research, that there is no justification for such limitation of the right, and that this situation necessitates urgent and comprehensive review.
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