Reproductive rights – who really owns your eggs or sperm?

Understanding gamete ownership

You may have seen the Netflix film “Joy: The Birth of IVF”. It tells the story of Louise Brown, the first “test-tube baby”, and the scientists as well as brave women who helped to bring about this breakthrough in reproductive science. We take fertility treatment for granted now, but procedures like IVF, gamete donation and embryo freezing raise a critical legal question: who has the right to control eggs or sperm once they’ve been removed from the body? 

What exactly are gametes?

Gametes are reproductive cells – sperm in men and eggs in women – that are joined during fertilisation to form an embryo. Thanks to advances in medical science, it is now possible to collect, freeze and store these cells for future use or donate them to others, for example in sperm banks. Although a more invasive procedure, women also donate eggs to help other women experiencing infertility. But once they’re outside the body, the legal status of these cells becomes complicated.

The Regulations: Artificial Fertilisation of Persons, part of the National Health Act of 2003, regulates ownership of gametes, zygotes and embryos, Regulation 18 states:

“‘Gamete’ means either of the two generative cells essential for human reproduction before artificial fertilisation; the ownership of a gamete donated for the purposes of artificial fertilisation is vested in the case of:

• A male gamete donor, for the artificial fertilisation of a recipient; in the authorised institution that intends to effect artificial fertilisation
• In the case of a male gamete donor, for the artificial fertilisation of his spouse, in that male gamete donor
• In the case of a female donor, for the artificial fertilisation of a recipient, in that female gamete donor”

Why does it matter who “owns” gametes?

Control over gametes can have major consequences and can be controversial, especially in situations where ownership is not obvious or straightforward. Unconventional reproductive circumstances might include: 

• Using a partner’s sperm or eggs after their death
• Relationship breakdowns after storing embryos or gametes together
• Disputes over who can use or discard frozen reproductive material
• Surrogacy arrangements involving stored sperm or eggs

What Does South African law say?

The National Health Act (NHA) and its accompanying regulations provide the legal framework for fertility treatments and assisted reproduction. Some key rules include:

• Gamete donors give up all rights to their donated sperm or eggs.
• Couples undergoing IVF must both provide written consent before gametes or embryos are stored or used.
• Clinics cannot use stored material without valid, ongoing consent from the donor(s).

However, the law doesn’t cover every possible situation. In fact, there’s limited guidance for scenarios like disputes between ex-partners or the use of gametes after death.

When couples split up: what happens to the embryos?

One increasingly common situation involves couples who freeze embryos during fertility treatment and subsequently divorce or otherwise terminate their relationship. Who is entitled to determine the fate of the embryos? This will depend on the wording of the consent forms signed at the fertility clinic. If disputes arise, the courts may need to step in. Just as couples rarely think about divorce when planning a wedding, couples undergoing fertility treatment are unlikely to contemplate their relationship ending before they have even had a child (though the stress of infertility is a common cause of relationship breakdown). Custody of live children is regularly discussed and disputed in divorce; deliberations over the future of an embryo are, by contrast, rare. But if one or other partner goes on to have a child using that embryo, the parental rights to the child are complex.

Death of a partner

When one partner dies, the situation is complex in a different way. The family of the deceased may have their own views. In Australia a few years ago, a couple had been trying for a baby when the husband was fatally injured in a tragic accident. In the hours after his sudden death, when his body was still in the hospital, a friend suggested the possibility of posthumous sperm retrieval, which must be done within 36 hours of a person’s death. Fifteen months after his death, his wife gave birth to their daughter, conceived by IVF. But to do that she had to go through a complex legal process, particularly because the couple was not involved in fertility treatment and no consent forms had been signed by anyone. 

Here in South Africa, a recent case illustrates just how complex this issue can become. In this matter, a widow in her late 30s approached the High Court for permission to use sperm and embryos frozen during her late husband’s cancer treatment. The couple had already had a child via IVF and had planned to grow their family. But the law was unclear on the wife’s rights to this genetic material after her husband’s death. The court considered two views:

1. Gametes should be treated like property that can be inherited or transferred
2. Gametes shouldn’t be treated like ordinary possessions, given the serious ethical and emotional implications

The court favoured the second view. Ultimately, the court found that the deceased had consented during his lifetime to the use of his sperm to have more children. That consent had never been withdrawn, and the couple’s shared reproductive intentions were clear. Based on this, the court allowed the widow to use the sperm to try for a second child.

However, the court refused to issue a broad ruling on gamete “ownership” and instead emphasised the importance of consent in guiding future decisions. It stressed that each case must be considered on its own merits.

The importance of consent

Consent is central. To be valid, consent must be informed, voluntary and ongoing. In other words, an individual granting consent must fully understand what they are agreeing to; there must be no pressure or coercion; and they have the right to change their mind, in which case the consent must be updated in writing.

Once stored, gametes or embryos cannot be used unless all legal requirements around consent are met. 

What about donors?

South African law also regulates gamete donation. When someone donates sperm or eggs, they give up all legal rights to any children born from that donation. Donations are anonymous, although medical or genetic reasons may sometimes prompt requests for more information. Disputes may still arise, especially if a donor later tries to claim rights, or if a recipient family wants access to the donor’s identity.

What’s next?

Medical technology is advancing rapidly and the law is struggling to keep pace. As assisted reproduction becomes more widespread, further legal questions and court cases will emerge around the issues of gamete ownership, posthumous reproduction and the rights of donors and recipients.

Cape Town family lawyer can help

SD Law is a firm of attorneys based in Cape Town, with offices in Johannesburg and Durban, who are experienced in family law. If you have questions about your reproductive rights, call family lawyer Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

Surrogacy

SD Law

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