A widow is pinning her hopes on the Gauteng High Court, Pretoria, to grant her ownership of reproductive material kept at a fertility clinic after her husband died.
She now wants to use her husband’s preserved sperm to produce a sibling for her only daughter.
The Gauteng woman opted for artificial fertilisation after her husband was diagnosed with Hodgkin's Lymphoma. Before he underwent chemotherapy treatment, he was advised to freeze his gametes (sperm) for later use should he want children in the future.
The woman said in court papers that due to the chemotherapy, they were unable to conceive naturally. Her husband donated sperm at a fertility clinic for preservation and 13 straws were frozen. Meanwhile, 16 eggs were retrieved from the woman, but only nine were mature. The other eggs had to be discarded as they were not suitable for intracytoplasmic sperm injection.
This is a microscopic procedure where one sperm is inserted in an egg with a glass needle, 14 times thinner than a human hair.
During this procedure, two sperm straws were used, leaving 11 available which remains cryopreserved. During March 2016, a double embryo transfer was performed resulting in the birth of her daughter in February 2017.
The woman said her husband died six months later. He did not specifically deal with the 11 remaining sperm straws in his last will and testament. Nor did she and her husband enter into an ownership agreement as to what would happen to the sperm straws upon his death.
He, however, did state that when he died, he left his entire estate to his wife.
The woman said for her to extend her family and to have a biological sibling for her daughter, she will have to make use of the 11 frozen straws available making use of the intracytoplasmic sperm injection procedure.
The creation, freezing and use of embryos are governed by the National Health Act, the Children's Act and the regulations relating to artificial fertilisation.
The court was told that it is important to distinguish between the ownership of the deceased's gametes and the embryos that were created using the gametes of both the deceased and herself.
One of the regulations makes it clear that after artificial fertilisation, the ownership of the embryo vests in the recipient, in other words, the widow. However, a further regulation prescribes that before artificial fertilisation, the ownership of the donated sperm vests in the male donor.
A gamete donor is defined as a "living person from whose body a gamete is removed for the purposes of artificial fertilisation“.
The purpose of the wife's application was to seek a declaratory order that the ownership of reproductive material be transferable, alternatively that the ownership of the sperm straws vest in the wife.
"For me to extend my family and to have a biological sibling for my daughter, I will have to make use of the remaining embryos for artificial fertilisation. If the transfer is negative, I will have to follow the intracytoplasmic sperm injection procedure. For this I will need the 11 remaining sperm straws."
The wife said she was told by the fertility gynaecologist that the regulations are silent as to a deceased donor's ownership of the gametes and that it would be best to obtain legal advice on this issue.
The specialist also told her that it is policy at the clinic not to proceed with any fertilisation processes until the question of ownership of the sperm was determined legally.
She said she was told by her attorney that regulation 18, dealing with this issue, is silent about a deceased donor's ownership and control. However, it is assumed that upon the donor's death, the ownership devolves in terms of succession law - thus vests in his estate.
The ownership will then devolve either through a will or intestate succession.
The question, however, remains as to whether ownership of reproductive material is transferable.
The court was told that there is no case law to date on this topic and the transferring of reproductive material is a legal labyrinth.
"Reproductive law, full of potential and ethical intrigue, beckons further exploration of the intricate relationship between law, ethics and humanity," the court was told.
The wife said it is clear that her husband consented to the removal and storage of his gametes to conceive children with her. They conceived their first child using in vitro fertilisation and she, as the widow, is now entitled to use the last few straws, the wife said.