South African gamete banks and donation agencies do not offer open-identity donors, because they believe – mistakenly – that donor anonymity is a legal requirement, write Donrich Thaldar of the University of KwaZulu-Natal, and Bonginkosi Shozi of the University of California San Diego.
Thaldar, of the UKZN School of Law, and Shozi, of the UCSD’s Institute of Practical Ethics, write in the SA Medical Journal that and analysis of SA statutory instruments and case law shows gamete donation in SA can be anywhere on the spectrum between anonymous and known. Accordingly, open-identity gamete donation would be lawful in SA and can be offered to the public by SA gamete banks and gamete donation agencies.
They write:
If one visits the websites of international gamete banks and gamete donation agencies, one will observe that it has become increasingly common that many donors are “identity-release” or “open-identity” donors. This is quite conspicuous, as the photos of open-identity donors as adults are published on some of these websites.
Being “open identity” typically means that the donors have agreed to have their identities released on request by the donor-conceived child once the child reaches the age of majority. In contrast, gamete banks and gamete donation agencies in South Africa at most only share early childhood photos of their donors, and make it clear that all their donors are anonymous.
The generally accepted belief among the country’s fertility industry seems to be that gamete donation in SA must, by law, be anonymous and that it is unlawful to disclose the identity of a gamete donor. This belief is shared by the South African Law Reform Commission, the state agency that does legal research and makes proposals for legal reform to the legislature. In a recent publication it wrote that “The legal position in South Africa is that gamete donors … must be anonymous and it is an offence to reveal the identity of a gamete donor. . .”
In this article, we set out to critically interrogate this assertion about the lawfulness of open-identity donation. Whether open identity donation is lawful in SA is relevant not only to South Africans using donor gametes, but to the many individuals around the world who deal with SA gamete banks and gamete donation agencies – all of whom may benefit from having the option of open identity donation.
It should be noted that papers by the South African Law Reform Commission carry no legal authority in SA law, but are purely to stimulate and inform public debate. And, as we show, both the South African Law Reform Commission and the entire SA fertility industry may be misdirected about what the relevant sources of law say.
We illustrate the common points of misconception by dissecting the statutory instruments that relate to the disclosure of the identities of gamete donors in SA, namely the Children’s Act 38 of 2005, the National Health Act 61 of 2003 (NHA), two sets of regulations made in terms of the NHA, and the Protection of Personal Information Act 4 of 2013 (POPIA).
We also consider the law of contract and case law, and conclude that the legal position in SA is more nuanced than generally accepted, and highlight how open-identity gamete donations may be carried out lawfully in SA.
Conclusion
We began by observing that SA gamete banks and gamete donation agencies at most only publish the early childhood photos of their donors, and do not offer open-identity donors.
We suggest that this is an unnecessary and self-imposed limitation based on a misconception about the law, as revealed by a proper analysis of the relevant sources of law. The position in SA law is that gamete donation can be anonymous, completely open to the public, or anywhere in between – depending on the election of the individual gamete donor.
Accordingly, it would be lawful for SA gamete banks and donation agencies to follow the international trend and offer open-identity donors with adult photos. The legal requirement is specific consent by the donors, and to err on the side of caution such consent must be in writing.
SA Medical Journal article – Is open-identity gamete donation lawful in South Africa? (Open access)
See more from MedicalBrief archives:
Egg providers changing the way SA thinks about assisted reproduction
Pretoria sperm donor father seeks resumption of parental rights
‘Three parent’ IVF and the older woman