Motherhood after loss: grieving widow wins legal battle for late husband's sperm
Her heart sank as she scanned her mail, looking for documentation that should have been there.
It was the annual statement from Vitalab Sandton, the fertility clinic that stored her late husband's frozen sperm – genetic material that represented her last chance to give her daughter a sibling.
When Mary-Anne Jacobs* enquired about the missing statement the clinic explained she had no automatic right to use the sperm of her husband, Charles*, without specific written consent authorising use after his death.
Because her right had been forfeited, she had stopped getting any paperwork pertaining to the storage of the sperm.
Mary-Anne was already struggling with grief. Charles (35) had died of cancer in August 2017, his body finally surrendering after a gruelling battle that saw his lungs operating at just 24% capacity in his final days.
Losing him when their daughter was just six months old was devastating enough – now it seemed their dream of a bigger family was also being taken away. 'The plan was always to have more than one child,' Mary-Anne tells YOU. She describes how Charles once pulled out plans for their home, pointing at the layout. 'If we have twins, where exactly are we putting that extra room?'
It seemed unfathomable to Mary-Anne that Charles, having specifically frozen his sperm to preserve his chance at parenthood, would be denied his wish to have more biological children.
Despite knowing little about fertility law, Mary-Anne believed being denied access to her husband's sperm was cruelly unjust so she decided to fight it.
It was an emotional connection I could never sever
Mary-Ann Jacobs
Although it took four years for the legal wheels to turn, she finally scored a victory. Last month the North Gauteng High Court in Pretoria declared Mary-Anne had the right to use her late husband's sperm 'for purposes of providing their daughter with a biological sibling'.
In the landmark judgment, Judge Brenda Neukircher ruled it was clear Charles intended the samples to be used for expanding his family, finding no evidence he had withdrawn his consent.
The legal precedent could potentially help countless couples who face tragedy after preserving genetic material.
'I never want anyone to be in the situation that I'm in,' Mary-Anne says, watching her now eight-year-old daughter play nearby.
'But if they are and they want to grow their family, at least there's something in the book of law for them now. This is a breakthrough.'
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Mary-Anne met Charles through mutual friends in Johannesburg in 2014, after he'd been battling cancer for four years.
Finding out he was ill was no obstacle, Mary-Anne says. 'He just brought happiness to my life. Although he was sick, he never complained at all.'
Charles had been diagnosed with Hodgkin's lymphoma, a cancer that affects the lymphatic system, at 28 and had suffered a relapse shortly before their paths crossed.
Despite this Mary-Anne saw beyond his illness to the man who made her laugh and dream of the future.
'People asked why I would get involved with someone who was sick,' she says. 'But because of the deep love we shared I couldn't resist.'
Their bond grew stronger as Charles continued going for treatment and they developed their own special communication system using the word 'flower' as a code word when they needed to have difficult conversations about life.
In May 2015 Charles proposed and by October that year they were husband and wife. Not knowing how long their fertility journey would take, they wasted no time in pursuing their dream of parenthood.
'We wanted to start the family soon after getting married because we didn't know how long it would take to fall pregnant,' Mary-Anne says.
Fortunately, Charles had frozen his sperm years earlier at his oncologist's recommendation. 'When he met with his oncologist the first thing he said was that if he wanted to have children he'd need to freeze his sperm because chemotherapy would kill his sperm cells,' Mary-Anne says.
She and Charles began IVF treatment and wondered if they'd have twins.
'The big discussion between us during IVF planning was about the two-egg approach,' she recalls. 'Doctors typically transfer two eggs – if one doesn't take, the other might, and sometimes you get twins. We'd laugh about getting it done in one go.'
In the end, their successful IVF treatment resulted in one fetus. But while Mary-Anne and Charles were delighted to be expecting, the pregnancy was far from joyful and Mary-Anne watched as her husband steadily deteriorated.
Just 19 days before their daughter was born he went into multiple organ failure, spent three weeks in ICU and was in an induced coma for nearly four months.
Charles rallied enough to meet his daughter but his condition continued to worsen.
Just six months after the baby's birth, he passed away from lung complications.
Heartbroken though she was, Mary-Anne was grateful Charles had frozen his sperm and given her a piece of himself to carry into the future – her precious daughter.
And because there was more sperm at the lab she could add to her family one day, she thought.
'The embryos and sperm represent my husband's life – a part of him that can still create life. It was an emotional connection I could never sever.'
READ MORE | 'I used my dead son's sperm to have a baby at 68 and I have no regrets,' says actress
Finding out she had no legal right to Charles' frozen sperm was a shock – but once the news had sunk in, she became determined to fight.
Her journey began in 2020 when she sought advice after not receiving her storage invoice from Vitalab.
The challenge revealed a critical gap in South African legislation – while Section 62 of the National Health Act addresses donation of body tissues after death, the definition of tissue specifically excludes reproductive material.
The minister of health and the minister of social development joined the proceedings, while the Centre for Child Law participated as amicus curiae (friend of the court).
None opposed her application.
However, Vitalab maintained their policy against proceeding 'with any IVF procedure pertaining to human reproductive material because of the uncertainty surrounding the transferability of ownership after death and ethical and legal considerations'.
Although South African legislation allows for the use of gametes – reproductive cells – with the written consent of the donor, the central question became whether Charles' frozen sperm constituted part of his estate.
The only relevant document was his will, which simply stated, 'Should my wife survive me, I leave my estate to my wife'.
The judge decided that was enough reason to rule in Mary-Anne's favour and she was overjoyed.
Adele van der Walt, a fertility law specialist from Pretoria, says the groundbreaking ruling is significant.
'This court ruling confirms that the National Health Act does not specifically regulate the posthumous transfer of ownership of ownership of genetic material in the absence of a contract.
'The court also confirmed a contextual approach to the interpretation of the health act on the issue of ownership should be given on a case-by-case basis.
Each application will be dealt with on its own merits.'
She advises fertility clinics to ensure written agreements between parties that address scenarios including death, medical incapacitation or divorce.
'I'm just happy that the law has been changed and it's there for people to use should they need it,' Mary-Anne says.
'It allows me to expand my family.'
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