SOUTH AFRICAN LAW

  • Sperm and egg donation is governed by the National Health Act (2003).
  • Section 294 of the Children’s Act requires the use of either the egg or sperm from one of the two parents commissioning the surrogate. It is not legal to use a donor egg, a donor sperm, and a surrogate mother.
  • South African law prevents a wife or partner from using the sperm of their deceased partner in an IVF procedure, unless there is formal consent in the will.

RULES OF THE NHA

  • In South Africa, the maximum number of embryos per transfer is three, but the Southern African Society of Reproductive Medicine and Gynaecological Endoscopy (SASREG) advises a single embryo in most cases, with two embryos indicated when the mother is older than 38.
  • No one may be paid for donating their eggs or sperm, and the donor’s identity is currently protected by law (See below for latest news on this issue.)
  • Parents using donated eggs can expect to get a donor profile detailing characteristics as well as academic/social achievements of the donor.
  • Gender selection is not currently legal in South Africa.
  • The legal limit in respect of the period for which frozen embryos may be stored is 10 years
  • In South Africa, no money can change hands in return for the act of surrogacy, although all life insurance and medical bills will be paid by the commissioning parents. A surrogate mother has no rights to the child after birth.

LATEST DEVELOPEMENTS IN SA

  • In August 2017 the South African Law Reform Commission published Issue Paper 32 on the Right to Know One’s Own Biological Origins. This is at odds with the current South African law, which says egg or sperm donation must be anonymous. If the law changes, donors and surrogate mothers will have to be identifiable and accessible to the children born of their altruistic assistance. The outcome of the nationwide public hearings is still awaited.
  • In June 2017 the Department of Health published new regulations for comment on the use of Human Gamete Banks. These are separate resolutions to the Chapter 8 regulations of the National Health Act, which state that only a subspecialist in reproductive medicine may perform any form of Assisted Reproduction. Egg donation will be limited to six donations, and sperm donation to 12 live births.