A sad story really: a young couple, married for only three months, is involved in a motor vehicle accident which results in the death of the husband. The couple, desperate for a child, is now not in the position to conceive one but the surviving wife makes arrangements for her deceased husband’s sperm to be harvested and stored for in vitro fertilisation. The question then arises; is the removal of the husband’s sperm post-mortem lawful?

INTRODUCTION

The law concerning artificial fertilisation is set out in a set of regulations in terms of s68 of the National Health Act (61 of 2003) (the NHA) referred to as the Regulations Relating to Artificial Fertilisation of Persons (GNR175, March 2 2012). The Regulations endeavour to regulate all measures and processes dealing with artificial fertilisation of a person including the position of artificial fertilisation post mortem.

We even have a definition of “artificial fertilisation” for the first time in our law. This definition defines “artificial fertilisation” as:

“the introduction by other than natural means of a male gamete or gametes into the internal reproductive organs of the female person for the purpose of human reproduction and includes artificial insemination, in vitro fertilisation, gamete intrafallopian tube transfer, embryo intrafallopian transfer or intracytoplasmic injection”.

Regulation 18 of the Regulations deals with the thorny issue of the “[o]wnership of gametes, zygotes and embryos”. In terms of this, a distinction is drawn for ownership purposes based on the timing of the fertilisation. Therefore, before artificial fertilisation is effected, the ownership of the gamete that has been donated vests in the organisation that withdrew the gamete. After the receipt of the gamete by an authorised institution, then the ownership vests in that institution. However, where the male donor has made the donation for the artificial fertilisation of his spouse, ownership vests in the male gamete donor. Where a female gamete donor makes a donation, ownership of the gamete vests in the donor. Once artificial fertilisation has occurred, ownership of a zygote or an embryo is vested in the recipient or donee.

All that having been said, the Regulations are express in Regulation 2 that they apply only to the withdrawal of gametes from and for use in living persons. The reason for such a restriction is based on the rigorous requirements for informed consent, set out in the Regulations, which are applicable to donors.

THE TISSUE REGULATIONS

Accordingly, it is necessary to turn to another set of regulations made in terms of s90(1) of the NHA read with s68(1) of the NHA and referred to as the Regulations Regarding the General Control of Human Bodies, Tissue, Blood, Blood Products and Gametes (GNR180, March 2 2012) (the Tissue Regulations).

The Tissue Regulations also deal with matters concerning artificial fertilisation and, quite confusingly, also define this term as “the introduction by other than natural means of a male gamete or gametes into the internal reproductive organs of a female person for the purpose of human reproduction and includes” [sic].

The Tissue Regulations underscore the provisions of the NHA dealing with donations in general. Accordingly, s62 of the NHA makes provision for certain donations of human biological materials to occur in terms of a will, or a document signed by the donor and at least two competent witnesses by way of an oral statement made by the donor in the presence of at least two competent witnesses. Section 62(1)(b) requires a donor to specify expressly who the donee is, failing which the donation is null and void in terms of s62(1)(c).

For purposes of the scenario sketched earlier in the article, the outcome is dependent entirely on the express wishes of the now-deceased husband. In so far as he consented to the removal of his gametes after his death for purposes of use by his wife, then a donation has been made in accordance with the NHA and effect may be given to such a donation. However, where no written donation exists or the deceased husband never expressed his wishes in a manner that did not identify his then-wife as the recipient of his gametes following his death, then no valid donation exists for purposes of the NHA.

CONCLUSION

Ultimately, due to the significant advances of medical science, one is now required to take more care about one’s biological material. Accordingly, behaving responsibly, one’s wishes should be set out in a will or similar document in respect of the use to which one wishes to have one’s biological material put following death.

Whilst most of us behave as if we will live forever, the reality is that we will not and arrangements should be effected sooner, rather than later, to make sure that we are able to put to good use our biological materials and thus be treated with respect following our demise.

Written by Neil Kirby, director, Werksmans Attorneys