A comparative analysis of the legal status of cryopreserved embryos, resulting from in-vitro fertilisation, for the purpose of custody issues during divorce proceedings.

Abstract

The process of cryopreservation of embryos is a relatively new concept in the field of in vitro fertilisation (IVF) treatment. South African law is silent on the manner in which these cryopreserved embryos should be disposed of; in instances of divorce. During the course of this paper, comparisons will be made between South Africa and countries that have already dealt with custody disputes of these cryopreserved embryos during divorce. The United States of America (USA); Unoted Kingdom (UK) and Australia are countries that have already dealt with these issues in their courts. The analogies made between these countries and South Africa will illustrate the deficiencies in South African law. The USA, UK and Australia will also be compared with each other to demonstrate which country has the most accurate approach in dealing with these matters. To this end, cases that have been dealt with in each of the countries’ jurisdictions will be examined and critiqued.

The validity of surrogacy agreeements, both under the common law and under the Children’s Act 38 of 2005 (The Children’s Act), will also be discussed. The purpose of this discussion is to comment on the similarities between surrogacy agreements, and embryo disposition agreements, and argue that laws similar (to those regulating surrogacy agreements) should be promulgated to govern and regulate embryo disposition agreements.

The submission that I will make in conclusion is that in the event of not enacting legislation to specifically govern embryo disposition agreements, the legislature should amend the Children’s Act to include the regulation of embryo disposition agreements. The amendment of the Childrens Act is the most practical approach to remedy the lacuna.