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Sperm or Egg Donation

Getting a Contract in Place for Sperm or Egg Donation

An anonymous sperm or egg donation is where the donor’s identity is not disclosed. However, the issue of donation, parental rights, limits in responsibilities, and the right to be identified as the donor when the donor is known to the receiver can lead to complications. In this regard, getting a contract in place for sperm or egg donation is crucial to avoid legal complications and disputes.

Sperm or Egg Donation


What is a known sperm or egg donating agreement?

In this type of contract, the responsibilities, rights and limits of the parties involved are stipulated and agreed upon. With known gametes donating, the insemination is normally done by natural means and the mother knows the identity of the donor. Due to the known donor relationship not yet fully governed by the law in South Africa, this type of agreement still leaves a lot of room for error and is best discussed with an experienced medical law attorney.

An important factor to consider for surrogacy

The Children’s Act of 2005 in Section 294 stipulates that the gametes of at least one commissioning parent must be used in surrogacy. This means you cannot have an egg donor, sperm donor and surrogate mother. At least one of the commissioning parents must be genetically connected to the child to be born from the surrogacy arrangement.

Agreement to use sperm of a deceased partner

In the instance where the wife and husband try to conceive by means of IVF or surrogacy and the husband donates his gametes for medical safekeeping, the wife cannot use the gametes of her deceased partner. However, if his will permits it, then she has the right to use the gametes to conceive or for application in the IVF process for surrogacy.

Keep the following in mind when getting a contract in place for surrogacy, sperm or egg donation:

  • The upper limit for embryos per transfer in South Africa stands at three.
  • At present, the gametes donor’s identity remains protected, but recent law reform developments do complicate the issue. This is best discussed in person with an experienced surrogacy and fertility lawyer.
  • So-called designer babies, where parents select the exact attributes they want in the baby, including gender, are not legal in South Africa.
  • Although the donor’s identity might not be known, the commissioning parents still get a profile of the donor regarding specific aspects, such as achievements.
  • Even with an agreement in place, the longest period currently allowed for storing frozen embryos is ten years.

What about law reform related to the child’s rights to know their biological origin?

This is still a complex issue as the present law protects the identity of the donor. Public participation hearings and developments in the law are not yet finalised at the time of writing (January 2022).

With many complexities surrounding gametes donation, whether known donation or anonymous, it is essential to seek legal guidance to get a contract in place for every aspect of the process. Reach out to Adele van der Walt Incorporated for legal guidance in this regard.

Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant to the date of publishing – January 2022.