LIFE AFTER DEATH?
By Neil Kirby, director
LEGAL BRIEF
SEPTEMBER 2014
A sad story really: a young couple, married for only three months, is
involved in a motor vehicle accident which results in the death of the
husband. The couple, desperate for a child, is now not in the position
to conceive one but the surviving wife makes arrangements for her
deceased husband’s sperm to be harvested and stored for in vitro
fertilisation. The question then arises; is the removal of the husband’s
sperm post-mortem lawful?
INTRODUCTION
The law concerning artificial fertilisation is set out in a set of
regulations in terms of s68 of the National Health Act (61 of 2003)
(the NHA) referred to as the Regulations Relating to Artificial
Fertilisation of Persons (GNR175, March 2 2012). The Regulations
endeavour to regulate all measures and processes dealing with
artificial fertilisation of a person including the position of artificial
fertilisation post mortem.
We even have a definition of “artificial fertilisation” for the first time
in our law. This definition defines “artificial fertilisation” as:
“the introduction by other than natural means of a male gamete or gametes into the internal reproductive organs of the female person for the purpose of human reproduction and includes artificial insemination, in vitro fertilisation, gamete intrafallopian tube transfer, embryo intrafallopian transfer or intracytoplasmic injection”.
Regulation 18 of the Regulations deals with the thorny issue of the
“[o]wnership of gametes, zygotes and embryos”. In terms of this, a
distinction is drawn for ownership purposes based on the timing of
the fertilisation. Therefore, before artificial fertilisation is effected,
the ownership of the gamete that has been donated vests in the
organisation that withdrew the gamete. After the receipt of the
gamete by an authorised institution, then the ownership vests in
that institution. However, where the male donor has made the
donation for the artificial fertilisation of his spouse, ownership vests in the male gamete donor. Where a female gamete donor
makes a donation, ownership of the gamete vests in the donor. Once artificial fertilisation has occurred, ownership of a zygote or an embryo is vested in the recipient or donee.
All that having been said, the Regulations are express in Regulation 2
that they apply only to the withdrawal of gametes from and for use in
living persons. The reason for such a restriction is based on the rigorous
requirements for informed consent, set out in the Regulations, which are
applicable to donors.
THE TISSUE REGULATIONS
Accordingly, it is necessary to turn to another set of regulations made
in terms of s90(1) of the NHA read with s68(1) of the NHA and referred
to as the Regulations Regarding the General Control of Human Bodies,
Tissue, Blood, Blood Products and Gametes (GNR180, March 2 2012)
(the Tissue Regulations).
The Tissue Regulations also deal with matters concerning artificial
fertilisation and, quite confusingly, also define this term as “the
introduction by other than natural means of a male gamete or gametes
into the internal reproductive organs of a female person for the purpose
of human reproduction and includes” [sic].
The Tissue Regulations underscore the provisions of the NHA dealing
with donations in general. Accordingly, s62 of the NHA makes provision
for certain donations of human biological materials to occur in terms of
a will, or a document signed by the donor and at least two competent
witnesses by way of an oral statement made by the donor in the
presence of at least two competent witnesses. Section 62(1)(b) requires a donor to specify expressly who the donee is,
failing which the donation is null and void in terms of s62(1)(c).
For purposes of the scenario sketched earlier in the article, the outcome
is dependent entirely on the express wishes of the now-deceased
husband. In so far as he consented to the removal of his gametes after
his death for purposes of use by his wife, then a donation has been
made in accordance with the NHA and effect may be given to such a
donation. However, where no written donation exists or the deceased
husband never expressed his wishes in a manner that did not identify his
then-wife as the recipient of his gametes following his death, then no
valid donation exists for purposes of the NHA.
CONCLUSION
Ultimately, due to the significant advances of medical science, one
is now required to take more care about one’s biological material.
Accordingly, behaving responsibly, one’s wishes should be set out in a
will or similar document in respect of the use to which one wishes to
have one’s biological material put following death.
Whilst most of us behave as if we will live forever, the reality is that we
will not and arrangements should be effected sooner, rather than later,
to make sure that we are able to put to good use our biological materials
and thus be treated with respect following our demise.
ABOUT THE AUTHOR
NEIL
KIRBY
Title: Office: Direct line: Email: Director
Johannesburg
+27 (0)11 535 8198
[email protected]
Neil Kirby is a director at Werksmans Attorneys and currently heads the firm’s Healthcare &
Life Sciences Law Practice.
He has significant litigation and dispute resolution expertise in healthcare, constitutional
and environmental law. Neil regularly advises on the provisions of the Promotion of Access
to Information Act and the Promotion of Administrative Justice Act, as well as on healthcare
legislation including the National Health Act, the Medicines and Related Substances Act,
the Pharmacy Act and Health Professions Act. He also has a strong understanding of the
Consumer Protection and National Environmental Management Acts.
Neil is a member of the International Bar Association (IBA). He is currently co-vice-chair of
the Corporate Social Responsibility Committee of the IBA. He was chair of the Healthcare
and Life Sciences Law Committee of the IBA from 2008-2012, and co-chair of the same
committee from 2012-2013. He is also co-patron of the South African Cystic Fibrosis Trust.
Neil is named as a leading lawyer in the categories of healthcare and regulatory by Best
Lawyers International and in dispute resolution by Chambers Global: The World’s Leading
Lawyers for Business. He has published numerous articles on healthcare, environmental,
administrative and constitutional law matters.
Neil holds LLB and LLM degrees and a Certificate in Environmental Law from the University
of the Witwatersrand.
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