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As technology speeds ahead, South African law on sperm donation needs an overhaul

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

Current South African legislation on sperm donation is often unclear and can be confusing. While the law does address some ethical considerations, there are still some glaring gaps and there is an argument to be made for more oversight of assisted reproductive technology.

In 2022, Netflix released a documentary titled “Our Father, which unravelled a complex tale of donor sperm, a popular and controversial fertility specialist and 100 offspring who connected through DNA testing.

The story, which detailed an Indianapolis doctor’s story of impregnating his unsuspecting patients, was a horrific look into fertility fraud. Though one of the oldest instances of assisted reproductive technology, it raised various ethical questions and moral concerns about sperm donation.

Towards the end of April, news broke of a Dutch court banning a man in the Netherlands from donating more sperm after discovering that he had fathered at least 550 children. Under Dutch guidelines, sperm donors can produce a maximum of 25 children with 12 mothers. Yet, as the story unravelled, it was revealed that the donor had lied about his donation history.

As the court stated in its ruling, “all these parents are now confronted with the fact that the children in their family are part of a huge kinship network, with hundreds of half-siblings, which they did not choose… [this] could possibly have negative psychosocial consequences for the children”.

Artificial insemination 

Sperm donation has a long and complex history. As far back as the 15th century, it is claimed that there were attempts to artificially inseminate women by King Henry IV of Castile. It wasn’t until the 1770s that the first documented case of artificial insemination was recorded by John Hunter in London.

In 1953, the first successful human pregnancy with frozen spermatozoa was recorded by Dr Jerome Sherman in the United States and by the 1970s, sperm banks became commercialised. As W Ombelet and J van Robays argued in 2015, “the worldwide acceptance of artificial insemination in animals provided the impetus for the innovation and development of many technologies which we are nowadays familiar with.”

Yet, despite these advancements, large ethical considerations loom.

For instance, should sperm donors be anonymous or identifiable, and what does this mean about transparency and accountability? In the example outlined above, an argument must be made for identifying the donor to combat the possible psychological consequences.

What about potential genetic risks? Should genetic health be disclosed? Additionally, what are the parameters of consent for the donor? Do they have the right to limit the use of their sperm or withdraw permission to use it?

Commodification

Moreover, as with many other artificial means of conception, there are concerns about the commodification of the human body. Does this practice exploit the vulnerable who may be enticed by the financial compensation of donation? In striking a balance between the rights of the donor children and the donor, where does the law lie?

In South Africa, the National Health Act of 2003 (as amended) sets out the regulatory framework for sperm donor agencies and fertility clinics. Regarding some of the concerns outlined above, it is the donor’s legal responsibility to declare his medical history truthfully and accurately and maintain a healthy lifestyle during the donation period.

Additionally, the donor is given a consent form about the use of the donated sperm and is allowed to withdraw consent before the sperm is accepted into the donor bank. In South Africa, donors can be anonymous and are not responsible for any children conceived, thus relinquishing parental rights. Finally, a donor may legally not have more than 12 live births, excluding the donor’s own children.

While the law does address some ethical considerations, there are still some glaring gaps and there is an argument to be made for more oversight of assisted reproductive technology.

Screening and regulation shortfalls

For example, there is often inadequate donor screening, particularly with regards to genetic testing and mental health assessments. As stated above, the current process relies on the donor’s transparency.

There is also insufficient regulation of sperm banks, which can lead to ethical violations. Then, there are concerns about access to donor sperm and whether this could result in discrimination and inequity in the system.

Additionally, there is little detail regarding donor compensation, thus raising concerns about compensation practices and the potential for exploitation.

In the South African context, the current legislation is often unclear and can be confusing. Carmel van Niekerk makes the argument that the current act is “flawed law”. As the author asserts, “The legislation that exists is not comprehensive enough to adequately address the concerns raised, or to deal with newer developments in this field. What is therefore needed is a review of all legislation.”

The law around sperm donation aims to balance the ethical concerns with the benefits of assisted reproductive technology but still demonstrates clear limitations.

It is essential to consider the moral dilemmas posed above in conjunction with the legislation to ensure that the practice remains safe, effective and equitable. As technology gains pace in this area, so too must the law. DM

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