As relations chill, who gets the embryos?

YOU, me and a fertilised egg makes three. But when love goes south, who gets custody of the frozen embryo?

Medical science has enabled thousands of couples to store embryos. This practice is common as a backup during in-vitro fertilisation, or because of health issues in either partner.

But what happens when the two people who once cherished the idea of conceiving are now estranged?

While two cases have made headlines in the US recently — one involving Modern Family actress Sofia Vergara — the law in South Africa seems to be untested.

However, some South African fertility clinics say they have contracts drawn up to avoid such situations.

Last week, a judge in San Francisco’s Superior Court ordered the destruction of five embryos after a man challenged his ex-wife’s right to use them.

The couple had signed an agreement in 2010 saying the embryos would be destroyed if they split up, but the 46-year-old mother is a cancer survivor, and argued that this was her last chance to bear children.

However, the judge upheld the agreement on the grounds that their intention at the time had to be honoured since the man did not want to father children with his ex-wife.

In the second case, Vergara is locked in a similar legal battle with her ex-fiancé, Nick Loeb.

They created two female embryos together before they split up, and he now wants to implant them in a surrogate.

Vergara said their original agreement, that consent by both parties was required, still stood, and the case has yet to be resolved.

Dr Paul le Roux, president of the South African Society for Reproductive Medicine and Gynaecological Endoscopy, said he was not aware of any court proceedings over frozen embryos in South Africa.

“According to South African law, frozen embryos are seen as the property of both partners if a couple is presenting for fertility treatment, and therefore consent from both partners is required prior to use of the frozen embryos in future. Any deviation from this principle would certainly require a court order in South Africa,” he said.

Dr Marie-Lena de Beer, head of the fertility unit at state facility Tygerberg Hospital, said frozen embryos could legally be destroyed after 10 years without the couple’s consent, because divorce was not the only issue regarding embryos that were not thawed for gestation.

But Dr Victor Hulme, a specialist at the private Aevitas Clinic, said the barrier to a decision being made often lay with the couple. “We advise all couples to make these decisions beforehand, but some find it difficult because of the nature of the discussion to be had.”

Embryologist Nicole Lans said the facility where she and Hulme worked had a contract that took account of the death of one or both biological parents. It did not stipulate the outcome in a divorce, and Lans said this needed to be agreed on between the two parties.

According to South African law, frozen embryos are seen as the property of both partners