Pretoria - In law, it is impossible for a couple to proceed with artificial fertilisation and then cryopreserve the embryos until they have identified a suitable surrogate mother.
A Gauteng couple, only identified as MCM (the woman) and D, the man, intend to have children of their own, but require the assistance of a surrogate mother. This is because MCM is suffering from an irreversible uterus condition which may render her infertile.
The couple said they would require the assistance of a surrogate mother, but had not yet found a suitable candidate.
To preserve MCM’s current health and fertility, they would like to proceed with artificial fertilisation at this stage. They intend to utilise MCM and D’s gametes, but will use those of an anonymous egg donor should MCM not be able to produce sufficient gametes.
The applicants said the gametes (oocytes) of either the woman or the anonymous donor would then be combined with that of the husband in a laboratory by in vitro fertilisation (IVF).
The embryo(s) would be cryopreserved and only transferred to the uterus of a surrogate mother after the court confirmed a surrogacy motherhood agreement.
The couple wouldn’t be able to proceed with gamete retrieval and the fertilisation without first obtaining the court’s approval due to the restricted wording of the provisions of the Children's Act.
The specific section of the act, states: “No person may artificially fertilise a woman in the execution of a surrogate motherhood agreement, or render assistance in such … unless that artificial fertilisation is authorised by a court.”
The applicants said it was an unintended consequence of the broad definition of the term artificial fertilisation used in conjunction with the term “rendering of assistance in such artificial fertilisation” that prohibits these processes in the absence of a court order authorising it.
They thus approached the court for an order directing the doctors to perform in vitro fertilisation, including oocyte (egg) retrieval, intracytoplasmic sperm injection, and cryopreservation of the blastocysts (embryos) created by the in vitro procedures.
They said that once they found a suitable surrogate mother, they would return to court to approve a surrogacy motherhood agreement.
An expert witness, who is an embryologist, and called by the couple to advance their case, said it wasn’t uncommon for commissioning parents in a surrogate motherhood agreement confirmation application to already have cryopreserved embryos. This, she said, was because the commissioning parent typically first, unsuccessfully, attempts to fall pregnant herself through IVF and embryo transfer, before being diagnosed as being unable to carry a pregnancy to term.
In such cases, surplus embryos often remain from the commissioning parents’ fertility treatment.
Judge Elmarie van der Schyff said in law a surrogate motherhood agreement needed first be confirmed by the court, before in vitro fertilisation could commence.
Once the surrogate motherhood agreement was confirmed, the surrogate mother is identified and she will be included in an application to confirm the agreement.
“I accept that … situations can arise that are not catered for in the existing legal framework,” the judge said.
However, she added, this court could not, in an application where no other parties were cited, including government representation who in the first place enacted the law, authorise an order which was contrary to the law.
“The court can also not after being approached on an ex parte basis (only by the applicants while no respondents are cited), grant a declaration of rights that may have a far-reaching effect, or consider the constitutional validity of the existing legal framework.”
The judge said despite the expert opinion called in by the couple that good reason existed for them to want to cryopreserve embryos rather than individual male and female gametes, the current legislative framework didn’t provide that option to them.
If the applicants want to challenge the wording, or constitutional validity of the law, they would have to join the Minister of Health to such proceedings.
The relief sought by the applicants thus falls outside the ambit of the Children’s Act since it has no bearing on the execution of a confirmed surrogate motherhood agreement.
The regulations relating to the artificial fertilisation of persons, as they currently stand, prohibit in vitro fertilisation except for embryo transfer to a specific recipient, she said.
In the absence of a constitutional challenge to the regulations with interested and affected parties joined to the proceedings, the application stood to be dismissed, the judge said.
Pretoria News