Swapna Prabhakaran
It is no longer compulsory for women in South Africa to “find a man” before having children, as laws governing access to the technology for artificial insemination changed this week.
Outdated regulations in the Human Tissue Act have been rewritten in this week’s Government Gazette to allow women to become mothers regardless of their marital status or sexual preference.
The Department of Health, after a little prodding from the South African Human Rights Commission, has changed problematic clauses in the Act.
One used to read: “A competent person may not effect the artificial insemination on any other person other than a married woman and only with the consent of her husband.”
This discriminated against single women of all sexual preferences and women in long- standing relationships. The rewritten version is in keeping with the new Constitution.
Dr Hans van Heerden, chief director of national services in the Health Department, said this week: “We just deleted the one regulation that said it [artificial insemination] could only be performed on married women, and then in three or four other regulations, wherever it referred to a husband or a spouse, we just added the phrase `in the event of such’.”
Michelle Nel, one of three women who lodged complaints with the commission against the old regulation, thinks it’s “fantastic” that the Department of Health reacted so promptly to the complaints. She has nothing but praise for the amendment which supports women’s decision not to have casual sex for the sake of conception.
“I think what this regulation does is free women,” she says. “No longer do you have to willy-nilly find a man, even if you don’t love him, just to have a child.”
The amendment was announced shortly after the commission subpoenaed the Minister of Health, Dr Nkosasana Zuma, to appear in court to be questioned on why the old regulations still stand.
Liesl Gernholtz of the commission said: “The department realised in July the laws were problematic but Zuma did not respond to shortcut options to change the laws then. After she received the subpoena, she responded immediately. Once she was aware of the situation, she acted promptly.”
Nel says Gernholtz “has been like a terrier in following this up”. Thanks to her quick action, women can begin immediately with conception procedures at a fertility clinic.
Van Heerden says there are clinics around the country which are equipped to perform artificial insemination. “Although, because it is a specialised form [of health care], women in the rural areas may have to come to cities,” he says.
Nel says South African women are increasingly less dependent on men for emotional or financial security. She feels it is an unforgivable form of discrimination to deny a woman her right to bear children, just because she has no contract with a man.
“[To bear children] is a very fundamental biological urge. It’s wonderful being a woman, you have the capacity to bear children. It’s cruel to deny women that right,” Nel says.
While the old regulation may have been written out of a perception that children should only be born into a family with married heterosexual parents, those family values have undergone a re-examination in the 1990s.
Nel says the divorce rate is so high now that “more women are ending up as single mothers through divorce anyway”.
She says what’s important for the child is that the parent be loving and nurturing. “The single mothers I know do a magnificent job.”