2025

XBLAW5119 POE

PART 1-LEGAL MEMORANDUM

THANDO NCUBE ST10472092
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Table of Contents
Contents
Table of Contents ................................................................................................................... 1
Legal Memorandum ............................................................................................................... 2
1) Facts .............................................................................................................................. 2
2) Legal Questions .............................................................................................................. 3
3) Short Answers ................................................................................................................ 3
4) Applicable legal Principles .............................................................................................. 4
4.1) The constitution of the Republic of South Africa, 1996 ............................................... 4
4.2) The National Health Act 61 of 2003............................................................................ 4
4.2.1) The South African Regulation relating to Artificial Fertilisation of Persons ................. 4
4.3) Common Law ........................................................................................................... 5
4.4) Case Law ................................................................................................................. 5
5) Application of the law ..................................................................................................... 5
6) Recommendation ........................................................................................................... 6
7) References ..................................................................................................................... 7
Annexture E ........................................................................................................................ 8
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Legal Memorandum
To: Mr Bhengu

From: Thando Ncube

Date: 25 February 2025

Re: Status in Law regarding the embryos of Ms Manana and Mr Potgieter.

1) Facts
1.1) Ms Manana and Mr Potgieter were married in community of property at the age of 25.
They were focused on their careers, travelling the world and taking part in extreme sports.
Due to their adventurous lifestyle the couple decided to contribute their gametes to be fertilised
by artificial means and to freeze 3 embryos that would be the result. The medical procedure
was conducted by Frozen Futures LTD. The embryos were cryopreserved. At the age of 35
the marriage had failed, and the couple opted for a divorce. The divorce settlement agreement
did not make provision for the 3 embryos in respect to their future use, donation or disposal.
At the age of 40 years old Ms Manana decided to approach Frozen Futures LTD requesting
to have the embryos implanted into her uterus. Frozen Futures LTD urged that Mr Potgieter’s
consent was required before she could undergo the procedure. Mr Potgieter insisted that he
does not want a child with Ms Manana nor anything to do with the eggs, and that it does not
give Ms Manana the right to have them either because they were intended to be used by them
as a couple. He states that the eggs must be disposed of and if Ms Manana attempts to have
the eggs implanted, he will proceed legally in attempt to stop her. Ms Manana states that Mr
Potgieter’s suggestion to dispose of the eggs basically cuts all ties including the rights he has
for them. Ms Manana will not register him as the father, and he is not obliged to contribute to
their lives in any way. Ms Manana states that if Mr Potgieter attempts to stop her, she will go
to court and claim the eggs as her own sole property.
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2) Legal Questions
2.1) What is the current legal position with regards to gametes and embryos?

2.2) Does the Nasciturus fiction apply to the embryos?

2.3) What is the status of the embryo – the same as the unborn child or can it be considered
a person under certain circumstances?

2.4) Can embryos be considered as property?

2.5) Supposing that embryos are property, discuss the legal position based on zain’s
attitude towards the embryos.

2.6) What is the likelihood of a court making an order in favour of the other party (Zain),
that is, by interdicting Ms Manana from implanting the embryos?

3) Short Answers
3.1) The current legal position is that the divorce settlement agreement does not give provision
for the embryos regarding their future use, donation, and disposal as well as consent and the
ownership rights for the embryos.

3.2) Nasciturus refers to foetus. The Nasciturus fiction, if it is to the advantage of the foetus,
ensures the protection of the interests of the foetus.1 The 3 embryos have not developed into
a foetus yet therefore, the nasciturus fiction cannot apply to the embryos as they are not
classified as a foetus at this stage. Furthermore, there is a probability that the embryos may
not reach that stage of being classified as a foetus for example having an unsuccessful
implantation.

3.3) The status of the embryo is a legal object. To be classified as a legal subject you must be
human or an entity capable of having rights and duties.2 An embryo is not a human and it is
not able to have rights and duties yet as it is at the early stages of development therefore, it
does not meet the requirements to be classified as a legal subject.3 It is not the same as an
unborn child because the nasciturus fiction does not apply to the embryo because the unborn
child is classified as a foetus and the embryo has not reached that stage yet. A person is
someone or something that can have legal rights and duties4, embryos do not have legal
subjectivity therefore cannot be considered a person under certain circumstances. However,

1
Barratt, A & Denson, R & Domingo, W & Mahler-Coetzee, JD & Osman, F Law of Persons Fresh Perspectives 3rd ed (2023) 20.
2
Barratt, A et al Law of Persons Fresh Perspectives 6.

3
Robinson, R “The Legal Nature of the Embryo: Legal Subject or Legal Object?” 2018 PER (21) 19.
4
Barratt, A et al Law of Persons Fresh Perspectives 6.
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an embryo cannot be classified as a 100% legal object. It is more or less in between being a
legal subject and object due to its potential to life.5

3.4) No, embryos cannot be classified as property. Property is something that a legal subject
can own which they can assert rights over. The South African common law and the National
health act do not allow the term ownership regarding the embryos. They prefer the terms
proprietary interest. Therefore, embryos cannot be regarded as property. They are regarded
as a subject of proprietary interest.

3.5) The likelihood of the court being in favour of Mr Potgieter is quite high, given that he has
stated that he does not want children with Ms Manana and wants nothing to do with the
embryos and that they must be disposed of. Consent from both Mr Potgieter and Ms Manana
is required to proceed with the implantation reason being that they both contributed their
gametes in to create the embryos. The divorce settlement agreement made no provision for
the embryos. Without legal provisions supporting her claim for sole ownership, Ms Manana is
unlikely to succeed. Therefore, the court may rule in favour of Mr Potgieter, and he could
therefore prevent Ms Manana from implanting the embryos.

4) Applicable legal Principles

4.1) The constitution of the Republic of South Africa, 1996
4.1.1) Section 39(3)
• When interpreting the bill of rights, a court must consider international law.

4.1.2) Section 39(1)(c)

• When interpreting the bill of rights, a court may consider foreign law

4.1.3) Section 11
• Everyone has the right to life.

4.1.4) Section 12 (2) (a)

4.2) The National Health Act 61 of 2003
4.2.1) The South African Regulation relating to Artificial Fertilisation of
Persons
4.2.1) (a) Regulation 18 Section 68 0f the National Health Act , 2003
(Act 61 of 2003)
• Ownership of gametes, zygotes and embryos.

5
Robinson, R “The Legal Nature of the Embryo: Legal Subject or Legal Object?” 2018 PER (21) 11.
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4.3) Common Law

4.4) Case Law
4.4.1) The Legal Nature of the Embryo: Legal subject or Legal
object? R Robinson
• Davis vs Davis
• The Christian Lawyers Association of South Africa v Minister of Health

4.4.2) When a relationship has reached its expiration date, does

the same apply to the embryos under South African law? C Van
Niekerk
• G and G (Australia)

5) Application of the law

5.1) The nasciturus fiction does not apply to embryos. The Christian Lawyers Association of
South Africa v Minister of Health6 case states that the term everyone in section 11 of the
Constitution of South Africa, 19967 (The constitution) does not include foetuses. This suggests
that the nasciturus fiction which protects the interests of the unborn foetus if it is to its
advantage may not apply to embryos due to them being at the early stage of development.

5.2) The South African common law does not consider embryos to be legal subjects as they
do not meet the requirements to be classified as legal subjects. In section 39 (3) of the
constitution of the Republic of South Africa, 19968, it states that when interpreting the bill of
rights the court must consider international law, therefore, In the case law Davis v Davis (3)9
it has been concluded that an embryo is neither a legal a subject or object but somewhere in
between being a legal subject and object because of their potential for human life. Furthermore
Regulation 18 under section 68 of the National Act10 (NHA) implies that an embryo is a legal
object but an unusual one. This indicates that an embryo is not a 100% legal object or subject
but somewhere in between.

5.3) Embryos cannot be classified as property. In the Regulations Relating to the Artificial
Fertilisation of Persons (Regulation)11, deriving from the NHA12 it is argued that Regulation 18

6
Robinson, R “The Legal Nature of the Embryo: Legal Subject or Legal Object?” 2018 PER (21) 13.
7
S 11 of the Constitution of the Republic of South Africa, 1996
8
S 39 (3) of the Constitution of the Republic of South Africa, 1996
9
Robinson, R “The Legal Nature of the Embryo: Legal Subject or Legal Object?” 2018 PER (21) 11.
10
S 68 of the National Health Act 61 of 2003
11
S 68 of the National Health Act 61 of 2003
12
Act 61 of 2003
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becomes problematic when referring to the term ownership regarding embryos.13 Ownership
is defined as “the most complete right which gives the owner the most complete and absolute entitlements

to a thing."14 The term proprietary interest is recommended because the South African common
law and NHA15 does not only find the term ownership as problematic but also state that
embryos cannot be classified as property due to them being unique. This places them in
between being property and a legal person. Furthermore, R Robinson suggests that due to
their potential to life they cannot be classified as property and therefore should be awarded
more respect.16 Embryos are therefore not classified as property or a legal person but as
subject of proprietary interest.

5.4) Even though section 11 of the constitution states that everyone has the right to life17, the
likelihood of the court being in favour of Mr Potgieter is quite high. The NHA18 states that
consent from both parties is required when making decisions regarding the usage of
embryos.19 Furthermore section 12 (2) (a) of the constitution20 states that everyone has the
right to make decisions concerning reproduction in this case the usage of the embryos.21 The
court would take into account whether both parties have given consent regarding the usage
of the embryos, which is in accordance with the NHA22. Furthermore, in the case of G and G
(Australia), the court concluded that “the embryos should be allowed to succumb as the parties have
now separated and can no longer achieve the purpose for which they consented to create and use the embryos. ”23

Therefore, the court would more likely favour Mr Potgieter.

6) Recommendation
6.1) If Ms Manana is unable to convince or to negotiate with Mr Potgieter to give her consent
regarding her implanting the embryos, she could look at alternative options such as surrogacy
or adoption to have kids in the near future.

13
Van Niekerk, C “When a relationship has reached its expiration date, does the same apply to the embryos under the south
african law?” 2017 169-170.
14
Ibid
15
Act 61 of 2003
16
Robinson, R “The Legal Nature of the Embryo: Legal Subject or Legal Object?” 2018 PER (21) 16.
17
S 11 of the Constitution of South Africa, 1996
18
Act 61 of 2003
19
Ibid
20
S 12 (2) (a) of the Constitution of South Africa, 1996
21
Ibid

22
Act 61 of 2003
23
Van Niekerk, C “When a relationship has reached its expiration date, does the same apply to the embryos under the south
african law?” 2017 171.
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7) References
7.1) Legislation
7.1.1) National Health Act 61 of 2003

7.1.2) Regulation 18 section 68 of the National Health Act 61 of 2003

7.1.3) Section 11 of the Constitution of South Africa, 1996

7.1.4) Section 12 (2) (a) of the Constitution of South Africa, 1996

7.1.5) Section 39 (1) (c) of the Constitution of South Africa, 1996

7.1.6) Section 39 (3) of the Constitution of South Africa, 1996

7.1.7) The South African Regulation relating to Artificial Fertilisation of Persons

7.2) Case law

7.2.1) Davis V Davis (3)

7.2.2) G and G (Australia)

7.2.3) The Christian Lawyers Association of South Africa v Minister of Health

7.3) Books
7.3.1) Barratt, A & Denson, R & Domingo, W & Mahler-Coetzee, JD & Osman, F Law of
Persons Fresh Perspectives 3rd ed

7.4) Articles
7.4.1) Robinson, R “The Legal Nature of the Embryo: Legal Subject or Legal Object?” 2018
PER (21)

7.4.2) Van Niekerk, C “When a relationship has reached its expiration date, does the same
apply to the embryos under the south african law?” 2017
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Annexture E
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