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South Africa: North Gauteng High Court, Pretoria
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[2016] ZAGPPHC 185
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Nurture Egg Donors CC v Minister of Health and Others (82891/15) [2016] ZAGPPHC 185 (8 April 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
8/4/2016
CASE NO: 82891/15
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO
In the matter between:-
NURTURE EGG DONORS
CC Applicant
and
MINISTER OF
HEALTH 1
st
Respondent
DIRECTOR - GENERAL OF
THE NATIONAL
DEPARTMENT OF
HEALTH 2
nd
Respondent
NATIONAL DIRECTOR OF
PUBL C PROSECUTIONS 3
rd
Respondent
JUDGMENT
MADIBA (A J)
INTRODUCTION
1.
This is an application in
which the Applicant seeks a declaratory order that it is lawful to
operate an egg bank business on a for-profit
basis by trading in
Additional information / so type information.
The 1st, 2nd and 3rd
Respondents have not filed notices to oppose.
2.
BACKGROUND
The facts are briefly as
follows:-
Ms Tertia Albertyn
established the Applicant, Nurture Egg Donors CC, an online egg
donation agency in 2008. She possesses an MBA
degree and she is
involved in the fertility industry and has written extensively on the
topic of fertility.
The person or couples
interested in Applicant's business, search on line for potential egg
donors free of charge. Once they found
a matching donor they pay a
matching donor fee to the Applicant. The Applicant will then arrange
and coordinate the donation on
behalf of the clinic and the
recipient.
3.
The Applicant intends to
establish an egg bank which will be the first egg bank in South
Africa that is independent from any fertility
clinic. It will not be
owned or be part of any existing clinic. As stated above, Ms Tertia
Albertyn, owner of the Applicant is
not a medical practitioner but
possesses extensive knowledge in the field of fertility.
The intended egg bank
which the Applicant wants to operate will recruit egg and sperm cells
(collectively known as gametes) from
donors, store and make available
certain information about their donors on line and supply gametes to
the interested parents on
a fee.
4.
The egg bank that the
Applicant intends operating, targets person or couple with fertility
problems who needs services of fertility
healthcare professionals to
conceive.
Only private fertility
clinics and some public hospitals offer the fertility health care
service in South Africa.
Trading in gametes is not
permitted in South Africa.
The donor profiles can be
obtained on line free of charge. Any person or couple who wants to
source more information about the donor
other than the required
information in such cases, has to pay for the required information.
5.
ISSUE TO BE DETERMINED
The issue in this matter
is whether a gamete bank can provide more additional information than
what is required about the gamete
donor on a profit basis in South
Africa.
6.
TH E CURRENT POSITION
OF OUR LAW
In terms of
Section 60
(1) (a) and (b) of the
National Health Act no 61 of 2003
the gamete
bank may receive payment for supplying gametes in order to retrieve
reasonable costs incurred in the donation. It is
an offence for a
person who has donated gametes to receive any form of financial or
other reward for such donation other than reasonable
costs incurred.
7.
Section 60
(1) (a) of the
National Health Act provides
that only authorized institutions may
receive payment for supplying gametes to intended person or couple.
Any egg bank must be
an authorized institution before it can operate
its business. See
Section 54
(1) of the
National Health Act.
8.
No
provision has been
made in
National Health Act in
an instance whereby the object of the
transaction is not gametes but information about the gametes donors.
It is required by law
that gamete donation should provide specific information / hard type
information by the gamete donor. The
specific information required
include:-
The particulars and
identification of the donor, informed consent from the donor relating
to the physical examination, the age of
the donor, eye colour, hair
colour, family history population group, qualification and field of
interest. See Regulation, in terms
of the
National Health Act
specifically
sub
regulation 8
(2) b - c.
9.
The following are
examples of additional information not regulated in terms of the
Regulation:-
- Early childhood photos;
- Personal essays
- Handwriting samples
- Voice samples
The above information is
classified as Additional information or soft type information.
Generally speaking, the
additional information does not disclose the identity of the donor.
10.
Therefore the additional
information or soft type information is not a legal requirement for
the donor and is not provided for in
regulation 4
of the Regulations
and the
National Health Act.
11.
The
Applicant submits
that a gamete donor is entitled to trade on a for-profit basis
regarding the additional information.
Consequently the
Applicant seeks a declaratory order that free trade in additional
information is lawful.
12.
In the circumstances the
Applicant further submits that since additional information is not
prohibited by any law, the egg bank
can provide additional
information as an extra option to the recipient on a profit basis.
13.
The 1
st
, 2
nd
and 3
rd
Respondents were approached and engaged by the
Applicant seeking their confirmation that Applicant is entitled to
trade in additional
information for a profit. The Respondents in this
matter did not corporate as seen from numerous letters addressed to
them. (As
per annextures "TA3" to "TA12 of the notice
motion)
14.
The Southern African
Society of Reproductive Medicine and Gynaecological Endoscopy (SAREG)
which regulate the profession in the
fertility industry was also
contacted. (See annexture "TA11" of the notice of motion)
SASREG is of the view
that authorized institutions applying to operate egg banks should be
Reproductive medicine specialists and
not people who do not have
medical qualifications like Applicant.
It should be noted that
SASREG's guidelines are not legally binding but influential in the
fertility industry.
15.
For the Applicant to
proceed with its intended egg bank, it needs legal certainty whether
it will be entitled to operate an egg
bank trading in additional
information for profit.
16.
The test case is
therefore whether the Applicant should proceed with its plans to
establish an egg bank and operate it on a profit
basis by trading in
additional information.
17.
The declaratory order
sought is informed by the fact that there is no authority in our law
authorizing the gamete donor to trade
in Additional Information soft
type information.
The Applicant deems it
necessary to first obtain legal certainty on the subject matter
before proceeding with the establishment
of an egg bank.
In a nutshell the
Applicant's matter raises a res nova.
18.
Having considered the
application and the declaratory order sought, I am of the view that
it is in the interest of justice to call
upon the Respondents to show
cause why the declaratory order should not be granted.
Consequently the
following order is made:-
19.
ORDER
a) The Respondents in
this matter should show cause why the declaratory order should not be
granted.
b) The Respondents should
serve and file their papers within thirty (30) days from the date of
this order.
c) The Sheriff of the
Court Pretoria or his Deputy must serve this order personally on the
1
st
2
nd
and 3
rd
Respondents.
d) No order as to costs
is made.
______________________
SS MADIBA
ACTING JUDGE OF THE HIGH
COURT
APPEARANCES:
HEARD ON
THE: 26
NOVEMBER 2015
DATE OF
JUDGMENT: 08
APRIL 2016
APPLICANT'S
COUNSEL: ADV.
JORDAAN
APPLICANT'S
ATTORNEY: C.R
BOTHA
1
ST
, 2
ND
& 3
RD
RESPONDENTS: NO
APPEARANCES