In Brief | Healthcare, Law & Ethics | Reproductive Medicine
 

Is open-identity gamete donation lawful in South Africa?

Time to read: 02:05

This article is a review of recent studies originally published in the South African Medical Journal, 1 June 2022. It does not represent the original research, nor is it intended to replace the original research. Access the full Disclaimer Information.

In their paper, authors Thaldar, and Shozi challenge the belief held by the SA Law Reform Commission that revealing the identity of a gamete donor is unlawful in South Africa. They argue that internationally, gamete banks and donation banks have an increasing number of identity-release or open-identity donors. However, in South Africa, gamete banks claim that all donors are anonymous due to legal restrictions and only allow the sharing of childhood photographs.

The authors examine various acts and case law, including the Children's Act in South Africa, the National Health Act, and the Regulations Relating to the Artificial Fertilisation of Persons. In brief they report that: 

-Under the Children's Act, donor-conceived children or their guardians have the right to access medical information about their gamete donors once they turn 18, but the act prohibits the disclosure of the donor's identity. However, this section should be interpreted in the context of the act and does not prevent gamete donors themselves from revealing their identities, suggesting that open-identity gamete donation may be lawful in South Africa.

-According to the National Health Act, information about a "user" is confidential unless consented to, required by law, or poses a threat to public health. It is debated whether gamete donors fall under the definition of a "user," and if they do, their identities may be disclosed with written consent. To err on the side of caution, gamete banks and agencies should obtain written consent for open-identity donation in accordance with the relevant section of the National Health Act.

-They find that the clearest answer to the question of legality within South Africa can be found in the regulations regarding the General Control of Human Bodies, Tissue, Blood, and Blood Products and Gametes. Specifically, Regulation 24(1)(c) allows for the disclosure of a gamete donor's identity, subject only to the consent of the donor. This challenges the common belief that gamete donation in South Africa must always be anonymous. 

-The authors discuss the interaction between contract law and statute law. They point out that while statute law does not require donor anonymity, it does not mean that anonymity is not protected elsewhere in the law. Anonymity may be upheld based on the principles of the law of contract.

In conclusion, they argue that current restrictions on gamete donation agencies and banks, which prevent them from offering open-identity donors, are based on a misconception about the law. They suggest that gamete donation can be anonymous, completely open, or anywhere in between, depending on the choice of the individual gamete donor.