'I want a divorce - and I'm taking the eggs'
It's a good idea to have an antenuptial contract to decide the 'custody' of egg cells and sperm, say family law experts
Egg. Check. Sperm. Check. Lawyer. Check.
South African couples using in vitro fertilisation to conceive are being advised to draw up a legal document akin to an antenuptial contract to decide the “custody” of embryos and gametes (egg cells and sperm) in the event of divorce or death.
The issue of custody in fertility is something family law experts say is increasingly coming before court internationally, and warrants attention locally.
It’s something a 31-year-old Cape Town woman wishes she had considered recently.
The woman, who is divorcing her husband, does not want “her” four frozen embryos but is willing to go to court to prevent her husband from “getting his hands on them”.“It sounds bitter, but I am hurt. I haven’t mentioned the embryos to my divorce lawyer as yet because I feel my husband will try to frustrate the situation,” she said.
“I think he will want the embryos just out of spite.”
The couple's third IVF transfer was scheduled for October last year but was cancelled when the woman discovered that her husband was having an affair.
Cape Town fertility law specialist Andrew Martin said embryo or gamete disposition agreements drawn up by an attorney are necessary in the event of divorce.
“Often there is enough animosity between the respective spouses that a further dispute regarding what happens to their embryos is not needed and a formal agreement that is much like an antenuptial contract will minimise or reduce the need to agree at a stage that the parties are less likely to agree to anything, ” he explained.
“In addition, having a contract drawn up at the time of doing treatment will assist the courts or the parties’ representatives in navigating what the parties’ intentions are,” he explained.
While the South African justice system has dealt with embryo and gamete ownership in the event of death, a “custody battle” over eggs, sperm or embryos in divorce has yet to enter the courts.But the anticipation has forced the Infertility Awareness Association of South Africa (Ifaasa) and clinics to recommend that embryo or gamete disposition agreements with an attorney are drawn up.
“Hopefully, this will then allow the wishes of all parties to be adequately documented in the event of changing scenarios,” said Cape Fertility Clinic specialist Dr Paul le Roux.
At present, the clinic requires the consent of both partners of a couple to transfer their frozen embryo.
“If one partner is unable to consent or refuses to provide consent, then the treatment cannot proceed unless a court authorises the doctor to proceed with the treatment. This situation may arise if one partner dies, or the couple split up,” Le Roux said.
While his clinic has not received any court orders to proceed, there are “real cases where individuals face this particular problem in South African fertility clinics”.Durban attorney Tracey Leigh Wessels said a formal agreement is highly advisable but that these documents should not be seen as being “the antenuptial contracts of assisted reproductive treatment”, which are usually cast in stone.
She said embryo disposition gives rise to a number of complex medico-legal ethical questions, including the future human life, a person’s right to opt out of becoming a parent, and the right to opt out of future co-parenting with an ex-spouse of a child yet to be born.
“Nothing and no legal document should ever override the parties’ right to approach the high court for urgent adjudication of their dispute, regard being had not only to their intention at the time of entering into the agreement, but also to the current circumstances of their matter.”
During Reproductive Health Month in February, Ifaasa urged all its members to research the legal ramifications surrounding assisted reproductive treatment.