Family Law: Can a surrogate mother carry twins with different fathers?

In extremely rare cases, a mother can carry twins that do not share the same DNA, in other words, fraternal twins with different biological fathers. This is a phenomenon called heteropaternal superfecundation which occurs when two or more eggs from the same menstrual cycle are fertilised by sperm from two different men.

As a result of modern medical advances in Invitro Fertilisation (IVF) procedures, this rare phenomenon of heteropaternal superfecundation is made possible through a procedure called double-embryo transfer. This involves the creation of two sets of embryos which are then implanted into the surrogate mother’s womb resulting in the surrogate mother potentially carrying fraternal twins with different biological fathers, should the IVF procedure be successful. The set of embryos can be formed by fertilising two separate eggs from a donor with the sperm from two separate males.

This procedure is gaining some popularity all over the developed world, especially in cases of same sex couples wishing to have children who are genetically related to each partner, without having to go through multiple IVF procedures, which can be very expensive.

What does South African Law say about double-embryo transfer procedures?

The first case of a double embryo transfer in South Africa is believed to be that of a same-sex couple from Pretoria who, in 2016, became the biological fathers to triplets. This was after a double-embryo transfer, where two separate eggs, one fertilised with the one father and another egg with the sperm of his husband, were implanted in the uterus of a surrogate mother. The transfer of both embryos was successful and one of the embryos split and resulted in identical twins, which then resulted in the triplets with two different biological fathers.

In 2018 Judge Desai of the Western Cape High Court, authorised a double embryo-transfer whereby one embryo was to be fertilised by a sperm from one partner and another embryo fertilised the other partner. It was noted, however, that the authorisation of the double-embryo transfer, was not a blanket authorisation for a competent person to perform such a double embryo transfer and the Court’s approval would be required for every such procedure until the Regulations were formally amended.

The utilisation of eggs, sperm and embryos in IVF and the surrogacy process are governed by:

a. Section 68 of the National Health Act 61 of 2003;
b. The Regulations promulgated by the Minister of Health in relation to Section 68 of the National Health Act; and
c. Chapter 19 of the Children’s Act 38 of 2005.

In terms Section 294 of the Children’s Act, 38 of 2005, “No surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person.”

This means that no surrogacy agreement will be valid unless there is a genetic link between the child to be born of the surrogacy and the commissioning parents, which prevents commissioning parents who are unable to contribute at least one of their gametes to the pregnancy from entering into a surrogacy agreement.

Furthermore, in terms of Regulation 10(2)(a) “A competent person shall not effect invitro fertilization except for embryo transfer to a specific recipient and then only by the union of gametes removed or withdrawn from the bodies of-

i. Such recipient and an individual male gamete donor; or
ii. An individual male and an individual female gamete donor;”

The Regulation has in the past been considered unclear, because of its use of the word “individual.” It was unclear whether in cases of multiple embryo transfers, embryos could be formed using the sperm of more than one male and the eggs of one female donor. Furthermore, whether the embryos may be formed from only the sperm of one male partner or the other or whether both partners’ sperm may be used. The use of the word “individual” could relate to how the embryo was fertilised rather than to the genetic origins of the embryo to be transferred.

In 2019 Judge Bozalek, of the Western Cape High Court handed down a judgment clarifying the interpretation of the Regulation 10(2)(a). In this judgment, the First, Second and Third Applicants sought an order from the court confirming and authorising the simultaneous invitro fertilisation of the Third Applicant with:

a. One embryo formed/created from the gametes of an oocyte (egg) donor fertilized by the first applicant’s gametes; and
b. One embryo formed/created from the gametes of an oocyte (egg) donor and fertilized by the second applicant’s gametes

The court held that the Regulation was to be interpreted restrictively, that use of the word “individual” restricts doctors from performing multiple embryo transfers involving more than one sperm or egg donor. In other words, multiple embryo transfers have to be made up of the same genetic material for each embryo to be transplanted into an individual surrogate.

The reason for this restrictive interpretation of the Regulation related to the record keeping obligations placed on doctors and clinics, specifically with regards to genetic disorders, birth defects and so forth. The court acknowledged that DNA testing at the time of birth could be used to overcome this issue, however, the court was of the opinion that because the legislature did not make provision for such testing, it could not be relied on to circumvent the Regulation.

The court thus held that the only interpretation of the Regulation has to be that the use of gametes from both the First and Second Applicant to fertilise the gametes of an egg donor could not be allowed.

Until such a time as the constitutionality of the Regulation is challenged or amended by the legislature, the Judgement of Judge Bozalek still holds in South Africa, as other divisions are likely to follow this judgment for future cases.

Written by Nelisa Sishuba

Contact an attorney at DKVG for all your family law and related matters. nsishuba@dkvg.co.za

This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.