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South Africa needs legislation to regulate and formalise embryo adoption


Professor Letlhokwa George Mpedi is the Vice-Chancellor and Principal of the University of Johannesburg.

There is no specific legislation in South Africa that governs embryo adoption. This may create ambiguity and uncertainty for couples and individuals who are considering this option.

In November 2022, a set of healthy twins, Lydia and Timothy, was born to the Ridgeway family in Portland, Oregon, in the United States. Their birth was seemingly nothing out of the ordinary until you consider that these twins were born from an embryo frozen in 1992.

As their father, Philip Ridgeway, commented, “In a sense, they’re our oldest children, even though they’re our smallest children.”

The medical name for the process the Ridgeway family underwent is embryo donation or adoption — the legal adoption of embryos that have been donated and frozen by families who have undergone in vitro fertilisation (IVF), a technique in which an egg is removed from the woman’s ovaries and fertilised with sperm in a laboratory.

The process was intensive. The Ridgeways underwent a stringent family assessment. They then went through a donor database that listed the embryo donors’ ethnicity, age, height, weight, genetic and health history, education, occupation and even favourite films and music.

The embryos they chose were created for a married couple using IVF, who eventually donated the remaining embryos to the National Embryo Donation Center.

Once these frozen embryos were thawed for the Ridgeways, only three were viable. Once transferred into the mother, Rachel, only two of the embryos were successful. While the Ridgeway twins are not the first instance of embryo adoption, they are the longest-frozen embryos to result in a live birth. This represents a new frontier for adoption.

There are some similarities between embryo adoption and infant adoption. There is an extensive matching process and a home study to ensure that the adoptive parents are suitable. There are some added benefits of embryo adoption.

Adoptive mothers carry and deliver their children and do not rely on a birth mother to relinquish rights. This provides a greater sense of control over the process and gives the adoptive parents legal rights prior to birth. The process, while still expensive, is cheaper than undergoing IVF and finding or storing sperm and egg donors.

Additionally, this provides a solution to the thousands of frozen embryos that are preserved but will likely go unused. This, of course, also spurs conversations about when life begins. The pro-choice versus pro-life argument is often drawn upon in deciding what to do with these embryos. As some argue, destroying a frozen embryo is equivalent to death.

The nuances of this argument are morally laden. Yet, embryos are also used in stem cell research, where this argument does not seem to hold as much weight among practitioners.

There are also a host of challenges presented by this process. Before the process even begins, there is only about an 80% survival rate when thawing frozen embryos. Then, there is no guarantee that embryo adoption will result in birth. The statistics suggest that there is only a 35% chance of success.

Adoptive parents may undergo this process numerous times, possibly with different donors. Adoptive mothers additionally must undergo medical procedures and fertility treatments, which can be invasive and, in some cases, traumatic.

Moreover, in the United States, many centres that assist with embryo adoption only allow “traditional” family units to adopt embryos. The National Embryo Donation Center, for instance, requires couples to be a genetic male and a genetic female married for a minimum of three years.

Moreover, adoption legally refers to living children. As the American Society for Reproductive Medicine warns, “application of the term ‘adoption’ to embryos is inaccurate, is misleading, and could place burdens upon recipients and should be avoided”.

This does, however, mean that adopted embryos are considered the adoptive parents’ biological children and do not require adoption orders.

In South Africa, embryo adoption is rare, but there have been some successful cases. The embryos are under the care of fertility clinics responsible for matching and placement, but this service is often unadvertised and is relatively uncommon.

Embryos are not always available, and families in South Africa often struggle to find suitable matches. Unlike in the United States, there are no stringent checks and balances, which can deter donating families.

Additionally, there is an emphasis on anonymous donation in South Africa, which could bring up issues when adoptees question their identity and look for answers about their genetics or biological families.

In South Africa, embryo donation is regulated by the National Health Act of 2003 and the Children’s Act of 2005. The National Health Act establishes guidelines for the donation of gametes (sperm and eggs), while the Children’s Act provides for the legal recognition of children born as a result of assisted reproductive technologies.

However, there is no specific legislation in South Africa that governs embryo adoption. This may create some ambiguity and uncertainty for couples and individuals who are considering this option.

Regulation of embryo adoption could help ensure that all parties involved are fully informed about the process, the risks and benefits, and their legal rights and responsibilities. It could also establish standards for the screening of donors and recipients and the handling, storage, and transfer of embryos.

It would be beneficial for South Africa to consider specific legislation to regulate embryo adoption.

As we explore new frontiers for human reproduction, embryo adoption presents an intriguing alternative for would-be parents. Yet, as we have learnt with these technological advancements, our laws and regulations must catch up. DM


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