Abstract

Millions of women worldwide are affected by congenital or acquired uterine infertility, often requiring hysterectomy, and are thus unable to gestate their own children. This article provides an initial framework for assessing the feasibility of uterine transplantation against the backdrop of the best interests of the child and legal, ethical and societal notions of the family, focusing on the medical, ethical and legal position of women affected by uterine infertility, and particularly on the constitutional rights of trans women in this regard. The transplantation of organs was initially developed as a life-saving treatment and a last resort. By contrast, uterine transplantation falls into the non-life sustaining category, which raises complex ethical issues. Following a successful clinical trial investigating uterine transplantation in Sweden, uterine transplantation appears to be a viable therapeutic option for women with uterine infertility, known as absolute uterine factor infertility. For trans women, infertility has been a consequence of the realignment of a trans woman’s body by surgery with their gender identity. Medically, ethically and legally, the consideration of performing uterine transplantation in trans women would be primarily motivated by considerations of equality. Legally, in terms of the Constitution, transgender people are afforded explicit protection from both direct and indirect forms of discrimination. Subsequently, if uterine transplantation became an established treatment option for women with absolute uterine factor infertility, it might be constitutionally discriminatory to refuse to perform uterine transplantation on trans women solely because of their gender identity. In the context of the rights to equality, dignity and reproductive freedom, the article poses the question whether such rights could justifiably be limited in South African law in terms of section 36 of the Constitution, with particular reference to the right to reproductive freedom. After considering whether such rights could legitimately be limited, the article concludes that, in relation to advances in medical law and reproduction, South African legislation should scrutinise its hetero-normative concept of the family in this regard.