Ownership rights of gametes and embryos under South African law is a complex medico-legal issue fraught with the potential for massive problem and constitutional challenge.

Reproductive medical technology is evolving at a rapid rate. It is clear from a review of both local and western international legal frameworks that the Law is battling to keep abreast of these developments nowhere is this more apparent than in the question of ownership rights of gametes and embryos. 

The lack of adequate legal framework, places specialists, fertility clinics, and patients utilizing their services at risk of future uncertainty and litigation, irrespective of whether such litigation is against the specialist, the fertility clinic, or another service recipient such as in a case involving disputed embryo dispositions.

OWNERSHIP RIGHTS UNDER THE NATIONAL HEALTH ACT

Regulation 18 of the  South African Regulations Relating to the Artificial Fertilization of Persons (Regulations to the National Health Act 61 of 2003) deals with the issue of ownership rights of gametes, zygotes and embryos, providing under Reg.18(1) as follows: –

Before artificial fertilization, the ownership of a gamete donated for the purposes of artificial fertilization is vested  –

(a).In the case of a male gamete donor but –

(i)before receipt of such gamete by the authorized institution to effect artificial fertilization, by the authorized institution which removed or withdrew the gamete ; and

(ii)after receipt of such gamete by the authorized institution that intends to effect artificial fertilization, in that institution.

(b).in the case of a  male gamete donor for the artificial fertilization of his spouse, in that male gamete donor  ; and

(c).in the case of a female gamete donor , for the artificial fertilization of a recipient , in that female gamete donor.

WHAT DOES OWNERSHIP OF AN EMBRYO ACTUALLY PROVIDE?

Basically, ownership refers to a person or entity’s exclusive rights to control and make determinations concerning an object, the right of ownership is subject only to the limited restriction set out by law.  

Without a doubt, the Regulation on the ownership of gametes is open to constitutional challenge both from a gender and a status perspective given that unless the male gamete donor is married to the recipient, he is afforded no rights of ownership over his gametes. This is clearly a case of legislative bungling given constitutional directive concerning gender equality and the recognition of the rights of persons who are not married to one another but who are in a mutually exclusive permanent relationship. Even if the parties are not in a permanent relationship, the denial of ownership rights to a gamete provider who expressly opts to be regarded as more than just a donor in respect of the child to be conceived, cannot be constitutionally correct.

Regulation 18(2) provides that :-

After artificial fertilization, the ownership of a zygote or embryo effected by donation of male and female gametes is vested –

(a).In the case of a male gamete donor, in the recipient ; and

(b).In the case of a female donor, in the recipient.

THE PROSPECT OF CONSTITUTIONAL CHALLENGE OF THE LAW

It is inconceivable that legislators, clearly apprised of a wide array of relevant constitutional developments, could seemingly confuse a woman’s constitutionally protected and exclusive reproductive right to determine life and death issues in respect of the embryo/foetus that she is carrying, with the current situation where she is not as yet the exclusive carrier of the frozen embryo or embryos which have yet to be implanted into her uterus.

The gender bias reflected in Regulation 18(2) viz the recipient woman’s exclusive ownership rights of the gametes will not withstand constitutional scrutiny. Ownership rights of gametes and embryos as set out in Regulation 18 are in for a bumpy ride – it is not going to be a case of  “if the Regulation is challenged” but rather “when the Regulation is challenged”.

GOING FORWARD

It is asserted that the best way to get around the problems presented by the Law is for the contributors to an embryo to enter into a joint ownership of embryo agreement. The agreement should ideally be entered into prior to the creation of the embryo and should clearly set out the rights of the parties viz the embryo in (i) the event of the parties’ separation or divorce, (ii) their advancing age post that recommended by policy for ART, and/or (iii) the death of either of them. This does not mean that the Court will on the adjudication of the co-owners dispute willy-nilly enforce the agreement but the agreement will provide the Court with evidence of the parties’ intention at the time of entering into the contract. Intention is one of the factors a Court would have regard to, other factors that would be taken into account are the interests of each owner to have a child or to avoid having a child.