WRITTEN DIRECTIVE FOR POSTHUMOUS REPRODUCTION

There is no specific provision within South African Law for posthumous retrieval and usage of gametes. Notwithstanding this, a deceased person’s Written Directive for posthumous reproduction will hold value in any legal investigation into the wishes and intention of the deceased.

THE VALUE OF ADVANCE WRITTEN DIRECTIVES

Just as young parents are advised on the necessity of having a Will to protect the rights and interests of their offspring, particularly insofar as the appointment of a person to hold Parental Responsibilities and Rights over them is concerned, so too, is it critical that a person who stores their embryos or gametes provides advance directive on what is to happen with their gametes or embryos in the event of their death.

ADVISING PATIENTS ON THE NEED FOR A WRITTEN DIRECTIVE

Normally a person extracting gametes for purposes of future reproduction will be required by the fertility clinic where their gametes will be stored for future use – to indicate in writing their intentions for the gametes in the event of their death.

AN ADVANCE DIRECTIVE IS NOT CAST IN STONE

As is the situation with a Will, an advance written directive for Posthumous Reproduction (PR) in the case of stored gametes is not cast in stone. The directive can at any stage be changed by that person. The right to be able to change their directive falls within the purview of personal autonomy.

The breakdown of a marriage or a relationship prior to the death of a person (who up until such breakdown fully intended that the spouse or partner should have use of their gametes) is a case in point.

Fertility Clinics hold a positive obligation to fully and properly advise their patients of the need for a written recordal of their intention regarding the future use of their gametes. Additionally, the clinic should also advise the patient on the right to changing their document should they at any stage change their mind hereon.

WORST CASE SCENARIOS WITH WRITTEN DIRECTIVES

The worst-case scenario with a written directive for PR is where the person clearly intended changing their advance directive but failed to timeously do so. An example here is where the person’s marriage or relationship has broken down but the estranged spouse or partner relies on their written document to prove intention, when in fact intention had changed. In the absence of any cogent evidence to the contrary, the likelihood of the Court giving the recipient the go-ahead is certain.