A widow is pinning her hopes on the Gauteng High Court (Pretoria) to grant her ownership of reproductive material kept at a fertility clinic after her husband died.

The Star reports the woman now wants to use her husband’s preserved sperm to produce a sibling for her only daughter.

She opted for artificial fertilisation after her husband was diagnosed with Hodgkin's Lymphoma. Before he underwent chemotherapy treatment, he was advised to freeze his gametes (sperm) for later use should he want children in the future.

During this procedure, two sperm straws were used, leaving 11 available, which remain cryopreserved.

During March 2016, a double embryo transfer was performed, resulting in the birth of her daughter in February 2017. The woman said her husband died six months later. He did not specifically deal with 11 remaining sperm straws in his last will and testament. Nor did she and her husband enter into an ownership agreement as to what would happen to the sperm straws upon his death.

He, however, did state that when he died, he left his entire estate to his wife. The woman said for her to extend her family and to have a biological sibling for her daughter, she will have to make use of the 11 frozen straws available.

The court was told that it is important to distinguish between the ownership of the deceased's gametes and the embryos that were created using the gametes of both the deceased and herself.

The Star report notes one of the regulations makes it clear that after artificial fertilisation, the ownership of the embryo vests in the recipient, in other words, the widow. However, a further regulation prescribes that before artificial fertilisation, the ownership of the donated sperm vests in the male donor.

A gamete donor is defined as a ‘living person from whose body a gamete is removed for the purposes of artificial fertilisation’.

The purpose of the wife's application was to seek a declaratory order that the ownership of reproductive material be transferable, or alternatively, that the ownership of the sperm straws vest in the wife. The wife said she was told by her attorney that regulation 18, dealing with this issue, is silent about a deceased donor’s ownership and control.

However, it is assumed that upon the donor’s death, the ownership devolves in terms of succession law – thus vests in his estate. The ownership will then devolve either through a will or intestate succession.

The question, however, remains as to whether ownership of reproductive material is transferable.

The court was told that there was no case law to date on this topic and the transferring of reproductive material was a legal labyrinth.

The wife said it was clear that her husband consented to the removal and storage of his gametes to conceive children with her.

She added they conceived their first child using in vitro fertilisation and she, as the widow, is now entitled to use the last few straws.

Full report in The Star