Court rules on sperm donors

South African law prohibits the use of the sperm of a dead man unless he had given written permission

May 23, 2011 11:03  
 
SA law prohibits the use of the sperm of a dead man unless, according to one fertility expert, he had given written permission, notes to a report in The Times quoting fertility specialist Lawrence Gobetz. He said yesterday that chapter eight of the Health Care Act prohibited the posthumous use of sperm. ‘The law is very clear. Even if sperm is frozen and the man dies, it is not allowed. But there has not been such a case in SA so the law has not been tested,’ he added. The report says Gobetz was reacting to a landmark ruling in an Australian court in which a woman won the right to use her dead husband's sperm to conceive. Jocelyn Edwards (40) won her battle in a New South Wales court to use her dead husband's sperm to have a baby. In NSW, in vitro fertilisation is banned without the consent of the donor.
 
 

Fertility specialist Lawrence Gobetz said yesterday that chapter eight of the Health Care Act prohibited the posthumous use of sperm.
"The law is very clear. Even if sperm is frozen and the man dies, it is not allowed.
"But there has not been such a case in South Africa so the law has not been tested," he said.
Gobetz was reacting to a landmark ruling in an Australian court in which a woman won the right to use her dead husband's sperm to conceive.
Jocelyn Edwards, 40, won her battle in a New South Wales court to use her dead husband's sperm to have a baby. In NSW, in vitro fertilisation is banned without the consent of the donor.
Edwards and her husband Mark had discussed fertility treatment after she failed to become pregnant and they were due to sign on for in vitro fertilisation consent forms on August 6 last year. But her husband died in a workplace accident on August 5.
His sperm was collected after his death and his widow has been fighting for control of it.
New South Wales Supreme Court Justice Robert Hulme said there were only two conclusions he could reach - either destroy the sperm or give it to Edwards, the administrator of her husband's estate. He found in Edwards' favour.
Dawn Blank, co-founder of Gift ov Life, an egg-donation agency in Johannesburg, Cape Town and Australia, said that if a man gave his written consent his widow would be able to bear his children.
"I would imagine that consent would be needed. If the man had signed and given his consent that [his sperm] can be used then the sperm can be used after he has died," said Blank.
"If the man has consented to his sperm being frozen but not [to it] being used, then it would not be [possible]," she said.
Even though Edwards won her case, she cannot be inseminated with the sperm in NSW and will have to go elsewhere.
"It's the right decision. Mark would be so happy that we're going to have our baby. That's what I plan to do," Edwards told reporters outside the court.
"I just want to get past today and enjoy the moment. It's been a long, long, long, difficult time," she said.