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Embryo and Gamete Donation

A ‘gamete’ means either of the two generative cells essential for human reproduction. An ‘oocyte’ is a female gamete and is also referred to as an ‘egg’. ‘Sperm’ is the male gamete. An ‘embryo’ means a human offspring in the first eight weeks from conception and for the purposes of this understanding includes a ‘blastocyst’, which means a preimplantation embryo consisting of an outer layer, which forms the placenta and a 30 to 200 cell inner cell mass, which develops into the foetus.

There has been a substantial increase in the demand for gamete, and more recently, embryo donation. Gamete and embryo donation are both regulated by the Regulations Relating to Artificial Fertilisation of Persons (hereinafter ‘the Regulations’), published under GN R175 in GG 35099 of 2 March 2012, and specifically promulgated (made law) in terms of the National health Act, No. 61 of 2003.

Gamete and embryo donation, both of which fall within the definition of ‘artificial fertilisation’, may only be effected at an authorised institution and only by a competent person. A competent person, in relation to artificial fertilisation means a person registered as such in terms of the Health Professions Act, No.56 of 1974 who is a medical practitioner specialising in gynaecology with training in reproductive medicine or a medical scientist, medical technologist, clinical technologist, with training in reproductive biology and related laboratory procedures.

Gamete and embryo donation are ordinarily done on an anonymous basis, with the Recipient(s) only ever knowing the Donor’s specific Donor Number, and only ever being able to access very specific (and limited) information about the Donor. This information includes: age; height; mass; eye colour; hair colour; complexion; population group; nationality; religion; occupation; highest educational qualification; fields of interest; family history with regards to possible genetic condition or carrier status and mental illness in respect of any child, brother, sister, parent or grandparent of the gamete donor; wishes in respect of the number of artificial fertilisations for which the gametes may be used; particulars of medical tests for genetically transmissible disorders or for infectious diseases, or genetic evaluation of the gamete/embryo donor(s); particulars of any evaluation of the psychological suitability of the gamete/embryo donor(s) to donate gametes; results of the tests and the analysis or examination of the Donor by the competent person performed in terms of the Regulations.

The consequences of a gamete or embryo donation are clear and in accordance with Section 40(1)(a) of the Children’s Act, any child born of the Recipient, where she has used the gametes or embryo of the Donor, will be for all purposes regarded as the child of the Recipient, and if she has a partner/spouse, then both of them. In terms of Section 40(3) of the Children’s Act, no right, responsibility, duty or obligation will arise between a child born of the Recipient, which child is born as a result of the artificial fertilisation of the Recipient using the Donor’s gametes or embryos, and the Donor or the blood relations of the Donor.

Both gamete and embryo donation can also be done using a ‘Known Donor’. This implies that the Donor and Recipient are known to each other. This can take the form of a friend, a family member or someone that you have recently met, who has consented to be a gamete/ embryo donor. In the event of a request in respect of which the Donor and Recipient are known to each other, the competent person who intends to remove or withdraw a gamete, or cause a gamete to be removed or withdrawn from the body of a gamete donor, or who intends transferring an embryo, shall, before such removal or withdrawal or transfer ensure that there is a written agreement in place and confirmation that the parties have all been psychologically evaluated.

These agreements are called, depending on the type of donation to be made, either a Known Gamete (Oocyte/Sperm) Donation Agreement, or a Known Embryo Donation Agreement. These agreements are very important. The competent person is prohibited from proceeding with the removal or withdrawal or transfer, without confirmation that the parties have entered into either of a Known Gamete (Oocyte/Sperm) Donation Agreement, or a Known Embryo Donation Agreement. These agreements are drafted so as to formally record the party’s intention in relation to the donation, and to regulate important aspects, including but not limited to, such as parental responsibilities and rights, disclosure of information and the identity of the parties, medical and genetic testing, etc. They are not only a legal requirement but are essential to act as a formal record of the party’s intentions and consequences of the donation.

Fertility Law has years of experience in drafting of both Known Gamete (Oocyte/Sperm) Donation or Known Embryo Donation Agreements. We, at Fertility Law, will help you navigate the legal requirements of having these agreements drafted, together with helping you understand the law surrounding the donation.

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Known Gamete Donation Agreements

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