Who owns frozen embryos if a couple separates before they are used?
According to South African attorney Robynne Friedman, who specialises in surrogacy and fertility law, the answer is far more complex than many people realise.
Speaking on 702, Friedman explained that while South African law provides a starting point, fertility clinic agreements and the specific circumstances of each case can significantly affect the outcome.
Embryos are not regarded as legal persons
Friedman said South African law does not recognise an embryo as having legal personality.
“Legal personality and the full right to life only begin at birth,” she explained.
She said an embryo has the potential to become a life but is not yet considered an independent legal person.
Instead, South African law treats embryos as reproductive material capable of being owned, with ownership governed by regulations under the National Health Act.
Who owns an embryo?
Friedman said the law generally provides that once an embryo has been created, ownership rests with the intended recipient.
Where a woman plans to carry the pregnancy herself, she is regarded as the legal owner of the embryo.
However, in surrogacy arrangements, the law currently regards the surrogate mother as the legal owner of the embryo.
Friedman acknowledged that this creates practical difficulties because surrogate mothers typically have no personal interest in the embryos beyond helping the intended parents have a child.
She said this is why agreements between the parties and fertility clinics are so important. —
Divorce agreements can change the outcome
Although legislation sets out default ownership, Friedman said parties can enter into agreements that deal with embryos differently.
She recently handled a divorce involving a same-sex couple whose embryos had been created separately using each partner’s sperm and donor eggs.
She said the dispute was resolved by allowing the surrogate mother to cede ownership of specific embryos back to each intended parent.
According to Friedman, agreements can allocate embryos between parties, making clear who may use them if the relationship later breaks down.
Co-parenting arrangements need clear agreements
Friedman warned that people entering co-parenting arrangements outside marriage should have comprehensive legal agreements in place.
She said ownership of embryos, including what happens if there is an odd number of embryos, should be addressed before treatment begins.
Without clear agreements, disputes are likely to be decided individually by the courts based on the facts of each case.
What happens after death?
Friedman also revealed she is involved in a High Court matter concerning whether a surviving husband may use embryos created with his late wife’s eggs and his sperm.
She said cases involving posthumous use of embryos depend on whether the deceased clearly consented to their use after death.
Friedman urged people with frozen embryos to record their wishes not only with their fertility clinic but also in their wills to reduce the risk of future disputes.
Fertility clinics should verify consent
Friedman said fertility clinics should take particular care before transferring embryos where relationships may have broken down.
She said clinics should confirm that both parties still consent to embryo transfer and check whether divorce proceedings or separations have occurred.
While mistakes can happen, she said she was not aware of reported South African court cases involving clinics losing embryos or carrying out transfers without proper consent, although disputes are often resolved privately.
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