As courts internationally are increasingly confronted with the issue of custody in fertility, SA couples using in vitro fertilisation to conceive are being advised to draw up legal documents akin to antenuptial contracts, reports Times Select.

Cape Town fertility law specialist Andrew Martin said embryo or gamete disposition agreements drawn up by an attorney to determine custody were necessary in the event of divorce. He said a formal agreement that was much like an antenuptial contract would minimise or reduce the need to agree at a stage when the parties were less likely to agree to anything.

'In addition, having a contract drawn up at the time of doing treatment will assist the courts or the parties' representatives in navigating what the parties' intentions are,' he explained.

While the SA justice system has dealt with embryo and gamete ownership in the event of death, a 'custody battle' over eggs, sperm or embryos in divorce has yet to enter the courts. If one partner is unable to consent or refuses to provide consent, then the treatment cannot proceed unless a court authorised the doctor to proceed with the treatment, he said.

Durban attorney Tracey Leigh Wessels said a formal agreement was highly advisable but should not be seen as being 'the antenuptial contracts of assisted reproductive treatment', which were usually cast in stone. She said embryo disposition gave rise to a number of complex medico-legal ethical questions, including the future human life, a person's right to opt out of becoming a parent, and the right to opt out of future co-parenting with an ex-spouse of a child yet to be born.

Full Times Select report