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Reproductive rights in South Africa have traditionally focused on the rights of individuals to avoid reproduction. However, with an increase in the use of assisted reproductive technologies (ART), there has been a shift in the focus on reproductive rights from the rights of individuals to avoid reproduction to the rights of individuals to reproduce noncoitally. With the emergence of new technologies, reproduction by noncoital means and the right to engage in these new technologies is becoming more prevalent. This raises two questions. The first question is whether such a right exists. The recent Constitutional Court decision in AB v Minister of Social Development 2017 3 BCLR 267 (CC) suggests that it does, but only if the person claiming this right is physically involved in the reproductive process. Ostensibly this excludes those who cannot contribute to the reproduction of a child. The second question raised pertains to the impact of this right on specific forms of ART, namely mitochondrial transfer, posthumous reproduction and embryo donation. While the first two forms of ART would meet the criteria set down in AB, embryo donation would not. Individuals denied access to embryo donation could thus not rely on either the right to reproductive autonomy or the right to privacy to aid them. Fortunately the existing legal framework provides some assistance to these individuals, although sadly the same legislative framework does not support the use of mitochondrial transfer and posthumous reproduction. In this respect there is incongruence between rights and legislation, which has only been exacerbated by the recent Constitutional Court decision. What is thus needed is clarity on the meaning of certain rights in respect of certain forms of ART as well as legislative reform to reflect the clarified position.

ARGUMENTATION STRATEGIES IN THE DEBATE ON MITOCHONDRIAL DONATION Bioethical aspects of mitochondrial donation have recently become one of the most debated issues. The growing interest in the philosophical and bioethical problems it generates has become even more visible since mitochondrial donation was legally allowed in Great Britain in 2015. In this paper we will take a closer look at the arguments employed in the debate, such as 1) argument from uncertainty closely connected with an obligation to use safe and already known alternative medical procedures; 2) the threat of losing personal identity; 3) the fear of creating a child of three parents; 4) detrimental outcome of manipulation in the human germ line. We will analyze the arguments showing that they are in fact the result of the lack of precision in employing medical terminology, the simplification of argumentation or the manifestation of ‘status quo bias’.