Pretoria - A businesswoman who intends to establish the first independent egg bank in the country, turned to the high court in Pretoria to obtain legal clarity on whether it is lawful to operate this business on a profit basis.
The business would sell additional “soft type” information to prospective parents, such as voice and handwriting samples and early childhood pictures of the donors.
This is to enable prospective parents to choose the perfect donors for their babies.
Cape Town resident Tertia Albertyn established Nurture Egg Donors CC, an online egg donation agency, in 2008. She said she is an expert on the topic and has written several books on it.
Prospective parents search online for potential egg donors free of charge.
Once they find a matching donor they pay a matching donor fee to Albertyn.
She in turn will arrange and co-ordinate the donation on behalf of the clinic and the recipient.
She now wants to expand her business by establishing an egg bank herself - the first in South Africa that is independent from any other fertility clinic.
Her egg bank will recruit egg and sperm cells (collectively known as gametes) from donors and store them. But Albertyn also wants to make certain “soft” information available to prospective parents with fertility problems, charging a fee for this.
Trading in gametes (charging a fee) is not permitted in South Africa. But donor profiles can be obtained free of charge online. But Albertyn said the law is silent on whether she can go the extra mile and provide additional information at a fee to prospective parents, without disclosing the identity of the donors.
As things now stand, it is required by law that gamete donation should provide specific information (hard type information), such as the age, eye and hair colour of the donor, as well as family history, qualifications and field of interest.
The law is, however silent on additional “soft” information.
Before broadening her business, Albertyn said, she had to get legal clarity as to what the position in the country was regarding trade in additional information.
The National Health Act deals only with transgressions where the object of the transgression is gametes and not transactions which involve information about the donors. She approached the office of the Minister of Health as well as the National Director of Public Prosecutions (NDPP) time and again to get clarity.
The health authorities ignored her, she said, and the NDPP simply told her she was not allowed to sell “soft” type of information, without stating any reasons.
Albertyn, in her affidavit before court, said the international sperm and egg banks disclose a range of “soft” information about the donors, without identifying them. These include the donor’s ambitions and essays written by them.
“Intended parents place value on this softer kind of intimate personal information about donors, which appears to be important to them in the absence of any kind of identifiable physical cues such as current pictures of the donor,” she said.
South Africa’s sperm banks offer significantly less information than their overseas counterparts, often leading to situations where local intended parents rather opt to pay large premiums to import sperm from foreign sperm banks as they offer ”soft” type of additional information, the court was told.
Acting Judge S S Madiba said this was a test case as to whether Albertyn should proceed with her plans to establish an egg bank and to operate it on a profit basis by trading in additional information.
He said there was no authority in South African law authorising the gamete donor trade regarding additional soft type information.
“I am of the view that it is in the interest of justice to call on the respondents as to why the declaratory order (allowing her to trade) should not be made,” the judge said.
The health authorities and the NDPP have two weeks in which to file papers if they object to Albertyn’s application.
This test case is said by legal experts to pave the way for the future of so-called “designer babies”.
Pretoria News