Picture: ISTOCK
Picture: ISTOCK

Following many failed in-vitro fertilisation attempts, a woman known as AB found a way to have her own child, at last, using a surrogate mother and an egg donor, as she couldn’t produce her own ova.

Because she was divorced, she planned to use donor sperm to have her baby. Then she learnt that the Children’s Act prevented her from using both a donor egg and donor sperm, and a surrogate mother, as it expects one commissioning parent to be related to the child to be carried by the surrogate.

She challenged the act.

The social development minister defended the act, arguing in the constitutional court that having a surrogate and donor egg and sperm allows parents to create designer babies. Additionally, having two parents unrelated to the commissioning parent is no different from adopting a child, the minister’s legal papers said.

The Children’s Act prevents the use of both a donor egg and a donor sperm in surrogate pregnancies

AB lost, and the aspect of the law known as the "genetic link requirement" in section 294 of the Children’s Act, requiring use of a gamete (egg cell or sperm) from one of the two parents commissioning the surrogate, was upheld by a majority judgment.

The genetic link allows children to learn of their biological origins, a growing and recognised right.

It is this global move towards the right of children to know their genetic origins that has the SA Law Reform Commission asking if the law that allows donors of gametes to stay anonymous should be changed.

The commission has prepared a paper, open for comment, on whether the law should be changed.

If the law changes, donors and surrogate mothers will have to be identifiable and accessible to the children born as a result of their altruistic assistance.

Fertility doctors warn that if this happens, egg and sperm donation will go the way it did in similar countries: it may collapse, and infertile parents will no longer be able to have children. This is a problem in SA where, as abroad, infertility is growing in part because many women delay falling pregnant until their mid-30s.

Egg donation is required in 30% of all couples using assistive reproductive technology, says Paul le Roux, executive committee member of the Southern African Society for Reproductive Medicine & Gynaecological Endoscopy.

He warns that, ironically, a child’s right to know his or her origins — if it leads to forced identification of gamete donors — may lead to the child not existing at all.

In most countries where anonymous donors have been excluded by law, the fertility system for gamete donation has collapsed
Paul le Roux

Meggan Zunkel, director of the Infertility Awareness Association of SA, puts it bluntly: "Individuals who donate do not generally want the children conceived through the donor process contacting them years down the line." Parents who use donor gametes actually consider the anonymity a positive aspect, she explains. In terms of the argument that children may need genetic information to know of genetic health risks or rare inheritable diseases, a full medical history and psychological assessment of a donor is taken and can be accessed later without names or identity being given, she says.

A single constitutional court judgment upholding the "genetic link" requirement between a child born to a surrogate and the commissioning parent is not the final word in domestic law on whether children must have access to the identity of their biological parents.

"With all due respect to the constitutional court’s final decision, it is clear that this was a very controversial decision that some feel may unfairly impact on the reproductive rights of certain couples," says Zunkel.

"The split in the constitutional court judges’ opinions in the final verdict demonstrates the ambiguity in this decision, and it is certainly not a clear mandate from our courts that anonymous sperm and egg donation needs to be reviewed or removed."

In countries where egg and sperm donors can no longer be anonymous, including Britain, Sweden and Australia, parents have to travel abroad for in-vitro fertilisation that requires the use of donor gametes.

The waiting list in Australia for a donor egg is at least three years.

A Google search for a British couple seeking egg donation yields search results for clinics based in Cyprus.

"In most countries where anonymous donors have been excluded by law, the fertility system for gamete donation has collapsed," says Le Roux.

While taking away anonymity could lead to fewer children being born, giving children the right to meet their biological parents also requires that the parents who raised them tell their children how they were conceived.

The Law Reform Commission paper argues that, in many cases, the use of in-vitro fertilisation and a donor gamete is not entirely secret: someone other than the parents knows of it and the child may later find out in any case.

This secrecy and breach of trust, when the child suddenly learns his or her biological origins are not the same as those of the parents who raised the child, can cause harm to the child and family relationships.

The paper notes research that shows that adult children born of donor gametes have also expressed the desire to know their biological parents — something many studies say helps them form healthy identities.

The paper also argues that just because children don’t know their parents are not their biological parents doesn’t mean no harm is done. Ignorance does not mean the child is not harmed by never learning the truth of his or her conception.

It is essential for law and ethics to keep up with fast-changing science, says pharmacist, ethicist and medical law expert Shafrudeen Amod.

"It becomes a moral imperative, with the current increase of assistive reproductive technology, that the pace of ethical reflection is not outpaced by advancing technological research and development."

Amod says parents shouldn’t be prevented by law from having children. "Parents, donors and offspring may have different interests and views on anonymous vs nonanonymous sperm donation. It would be impractical to have one general guideline, as this could create an ethical slippery slope. One would need to look to the courts as the upper guardian of the child on an individual basis, as and when the need arises."

A study in Denmark concluded that maintaining anonymity is important for most sperm donors.

But the Centre for Child Law says children have to know where they come from.

Its spokesman, Sebastian Mansfield-Barry, says: "There are certainly instances where knowledge of one’s biological parents is not possible, such as in cases of child abandonment.

"However, in the case of medical intervention such as surrogacy and in-vitro fertilisation, one does have the opportunity to record the biological parents of the child and this should be done to protect the child’s interests. How and when this disclosure should occur can be regulated to balance and protect the interests of all involved."

There is a middle line that perhaps meets parents and children’s needs.

Le Roux explains: "It has become more common now in some countries to allow the gamete donors to elect whether they are prepared to be known or stay anonymous, and we would support including this choice as an option in future law. This way a recipients of gametes and the gamete donors can choose the option that they prefer. "If this law commission assists to bring about this new choice, the Southern African Society for Reproductive Medicine & Gynaecological Endoscopy would support the initiative."

The law reform paper on a child knowing its biological origins does not stop there. It notes that, as it stands in the case of unmarried couples — common in SA — the father’s name does not have to appear on the birth certificate. If he wants it to be included he must appear before home affairs with the mother and ask for this to be done.

The law thus not only discriminates against unmarried fathers, but it also leaves the children unable to learn of their genetic origins.


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