Embryo Donations

Legal Advice for Embryo Donations in South Africa

Before understanding the legalities of embryo donations, it’s essential to understand the difference between embryos and eggs. The core difference between the two is that an egg is obtained from the ovary (and then frozen) before fertilisation occurs. Embryos, however, are a result of the egg and sperm coming together. When this occurs, a zygote is created. This then becomes an embryo and eventually a foetus.

Under South African law, two types of surrogacy agreements are recognised by law:

• Traditional surrogacy: This type of agreement involves the medical insemination of the surrogate mother with the sperm of the legally commissioning father. In such an instance, the embryo is formed with the egg of the surrogate mother and the sperm of the commissioning father.
• Gestational surrogacy: This type of surrogacy happens when an embryo is created using in vitro fertilisation (commonly known as IVF). The embryo may be created from the intended mother’s egg and the intended father’s sperm (meaning that the child is biologically connected to both intended parents), the intended mother’s egg and donor sperm, or the intended father’s sperm and a donor egg.

As such, one can see that embryo donations can occur in many forms. Under gestational agreements, the surrogate mother has no biological relation to the child.

Embryo Donations and Surrogacy: Understanding the Law

Under South African law, there are clear regulations under Section 294 of the Children’s Act that stipulate that either the sperm or the egg comes from one of the intended parents utilising the services of the surrogate. Therefore, a couple cannot use a surrogate if both the sperm and egg are from donors – and the embryo is not genetically related to one of the intended parents. However, if a couple chooses to undergo IVF themselves, they may use a third-party embryo from two anonymous donors.

Other legal aspects of embryo donations and surrogacy include the following:

• Parties cannot be paid for embryo donations and surrogacy (although medical expenses and insurance may be covered).
• Under South African law, a maximum of three embryos may be transferred during embryo transfer procedures.
• Frozen embryos can legally be stored for ten years.
• Under surrogacy law, surrogate parents do not have any legal parental rights towards the child.

Adele van der Walt Inc. for Trusted Legal Advice

When considering surrogacy and the use of embryo donations, it is essential to consult legal experts with profound knowledge of medical and fertility law. This will ensure that all procedures occur above board and that the experience is a smooth and legally sound one. If you or a loved one are thinking about starting the process, get in touch with our team. We bring professionalism, legal knowledge, and medical expertise to the fore to ensure that your fertility or surrogacy journey is successful.

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 – November 2022.