FLAWED LAW: A CRITICAL ANALYSIS OF THE FAULTS AND SHORTCOMINGS OF CHAPTER 8 OF THE NATIONAL HEALTH ACT OF 2003

Abstract

During 2011 health law grew by the addition of eight new Regulations dealing with stem cells and related matters. This added to the already existing six of Regulations which had been sporadically published since 2007. All these Regulations supplement the National Health Act of 2003. This legislative excess begs the question: Why has it been at all necessary to flood the legislative landscape surrounding the Act. The Act is a complex one and it entrenches various health policy principles. It is also framework-legislation meaning that only broad legal guidelines are provided and it must be “fleshed out” in Regulations. This however does not satisfy the question as to why this “fleshing out” has been done so overwhelmingly considering the period of time which the Act has been in force and keeping in mind these Regulations apply only to a single chapter of the Act. The aim of this article is thus an analysis of certain provisions in chapter 8 of the Act which will entail an explanation of its content, followed by a dissection thereof and suggestions. Ultimately, this article attempts to illustrate that
stem cell research, therapy and technology in general is not sufficiently regulated by chapter 8 which is so fatally flawed that it is almost dead legislation. It is recommended that new and comprehensive, updated and corresponding Regulations be drafted to supplement and correct the Act.