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Speaker: Professor Letlhokwa Mpedi, Deputy Vice Chancellor: Academic (University of Johannesburg)

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Contemporary reproductive technologies provide alternatives to the traditional methods of conception. Using medical technology, prospective parents can choose from a variety of methods of reproduction, how they wish to conceive their child(ren). For instance, they may opt for artificial insemination or fertilization outside the female’s body using a frozen sperm and egg. One of the possibilities flowing from these non-traditional forms of reproduction is that individuals can now delay the so-called ‘biological clock’. In addition, children can be conceived and born posthumously.

In South Africa, there are fertility clinics and sperm banks in almost every major city. It goes without saying that there are persons who take advantage of the services rendered by these facilities. The legislature has endeavoured to regulate and clarify the position of children conceived and born with the aid of reproductive technology. However, there is a great deal of uncertainty regarding the status of a new class of children created by assisted reproductive technology, namely: posthumously conceived children. It seems that the South African law, particularly in the field of social security, is lagging the developments in reproductive technology. The birth of posthumously conceived children can have a negative impact on the administration of a deceased person’s estate. Executors of the deceased’s estate may be confronted with an unenviable task of determining whether words such as ‘my children’ in the deceased’s will or ‘heirs’ in the case of intestate succession (should) include posthumously conceived children or not. In addition, the incidence of posthumously conceived offspring can have a profound impact on the distribution of social security benefits. Survivors’ benefits are the case in point. It is reported that the sperms can be frozen for up to twenty-five years. The uncertainty as to whether, the surviving wife or girlfriend would one day use the frozen sperms could make it extremely difficult for social security administrators to apportion the survivors’ benefits.

This talk addresses the entitlement of posthumously conceived children to survivors’ benefits in the South African social security system. It examines the survivors’ benefit system with a special focus on the conceptual context, legislative framework, and the different survivors’ benefits disbursed by the social security system. This is followed by a discussion on issues to consider when dealing with posthumous conception and survivors’ benefits. The presentation proceeds by debating a variety of options on how to address the challenges identified. This is followed by concluding remarks.

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