A legal analysis of trade in personal information regarding human gamete donors.

Abstract

The aim of this dissertation is to legally analyse whether personal information concerning gamete donors can be traded in South Africa, particularly by South African gamete banks and agencies. As business enterprises, gamete banks and agencies may view such trade as a profitable business model which provides them with a competitive edge in the fertility industry. However, absence of regulation in this regard has caused legal uncertainty for those banks and agencies who wish to engage such a business model. In this desktop-based research, it was found that: Autonomy is a key bioethical factor in the consideration of whether personal information should be offered to prospective parents by gamete banks and agencies. In particular, a significant amount of donor information acts as an autonomy-enhancing tool for prospective parents during the donor selection process, and thus South African gamete banks and agencies should be allowed to offer such information as an optional extra. Comparator countries such as the United States of America, United Kingdom and Canada deal with the provision of gamete donor information differently to South Africa. Many gamete banks and agencies in these countries provide prospective parents with detailed donor information without compromising donor anonymity. Furthermore, many of these gamete banks and agencies provide a basic donor profile free of charge, while charging a fee for access to extra detailed donor information. South Africa can, in principle, allow the trade of personal gamete donor information. As it is established that trade in personal gamete donor information is permissible, this must be made clear to eradicate any uncertainty experienced by South African gamete banks and agencies. Furthermore, there should be safeguard mechanisms in place to guard against undue enticement of donors with regard to profit-making in the sale of donor information. Therefore, the following recommendations are advised: A minor amendment in section 60(3) of the National Health Act. Promoting donor autonomy by strengthening the informed consent mechanism. This can be done via state regulations concerning donor-counselling or guidelines issued by SASREG. Offer donors modest compensation for the provision of their personal information; such compensation may be determined through guidelines issued by SASREG.