A couple’s court application for permission to proceed with artificial fertilisation and then freeze the embryos until they had identified a suitable surrogate mother was turned down by a Gauteng High Court judge, who said current regulations on artificial fertilisation prohibited in vitro fertilisation except for embryo transfer to a specific recipient.
“In the absence of a constitutional challenge to the regulations with interested parties joined, the application stood to be dismissed,” she said.
The couple, only identified as MCM (the woman) and D, the man, intend to have children of their own, but via a surrogate mother, due to MCM suffering from an irreversible condition which may render her infertile, reports The Mercury.
They said they had not yet found a suitable candidate, but to preserve MCM’s current health and fertility, they wanted to proceed with artificial fertilisation, using both of their gametes, but utilising those of an anonymous egg donor should MCM not produce sufficient gametes.
The applicants said the gametes (oocytes) of either the woman or the anonymous donor would 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, they said.
The couple wouldn’t be able to proceed with gamete retrieval and fertilisation without first obtaining the court’s approval due to the restricted wording of the Children’s Act, which 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 thus wanted a court 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.
An expert witness, an embryologist 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 was because the commissioning parent typically first, unsuccessfully, attempts to fall pregnant through IVF and embryo transfer, before being diagnosed as being unable to carry a pregnancy to term.
Judge Elmarie van der Schyff said in law a surrogate motherhood agreement needed first be confirmed by the court, before in vitro fertilisation could begin.
Once the agreement was confirmed, the surrogate mother is identified and included in the application. “I accept that situations can arise that are not catered for in the existing legal framework.”
However, she added, the court could not, in application where no other parties were cited, including government representation who in the first place enacted the law, authorise an order that was contrary to the law.
“The court can also not, after being approached on an ex parte basis (only by the applicants with no respondents), 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 while good reason existed for the couple to want to cryopreserve embryos rather than individual male and female gametes, the current legislative framework didn’t provide that option. 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, she said.
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 Mercury PressReader article – Not possible in law to freeze embryos: judge (Open access)
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