Couples fight for embryos in divorce cases

A few years ago, in divorce cases, couples mainly fought for property. Soon more divorcees will be fighting for sole custody of embryos frozen in some fertility clinic?

Amid the increase in the number of Kenyans getting children through intro vitro fertilisation (IVF), where a sperm and egg are fertilised in a lab before implanted in the womb, and marriages are not everlasting, the kinds of disputes that courts will start settling will be battles over embryos.

At Dr Kireki Omanwa’s clinic, Frontline Medical Consultants in Nairobi, hundreds of his clients choose to get children through IVF. For the eight years that he has been running the fertility clinic, one case lingers in his mind.

A couple visited him with the hope that he could make their dream come true. After conducting tests, he harvested the eggs, sperms and an embryo was created in readiness for making a baby.

“A few days later, we received a letter from the husband asking us to immediately halt the process. He’d just found out that the wife had been unfaithful and was contemplating his next steps,” Dr Omanwa recalls.

The case was filed in court.

“We’re yet to hear from the couple,” says the fertility specialist who studied at Wrocław Medical University in Poland.

“For now, the embryos stay in our care and we’ll only proceed with a court order in hand.” Demand for IVF has grown over the years, due to the availability of centres and specialists in Kenya and a growing population that can afford.

In most of these IVF centres couples draw up legal contracts detailing each partner’s rights but infertility can take a physical and emotional toll on patients that they do not think through before signing the paperwork.

It is always a rush against time to produce healthy embryos and babies as fast as possible. Later on, the science of IVF can carry its baggage. What happens to the remaining embryos if one or both of the partners die, or if they have had enough children? Who should decide what happens to the embryos in case of a divorce? What about the donor eggs and sperm in case of their owner’s death, disappearance, or incapacitation?

Giving a partner the sole rights to embryos could have consequences, should there be a divorce and an ex-partner brings the embryos to full term.

Data from the Kenya Fertility Society reveals that two in every 10 couples in the country face fertility issues. Most of these couples will opt for IVF, surrogacy, or adoption. However, the lack of laws governing assisted childbirth, including IVF and surrogacy, means that embattled couples are at the mercy of judges’ discretion.

Infertility causes

According to Dr Omanwa, who currently sees two IVF clients a day, infertility can be primary or secondary. Primary infertility is where a couple is having sex up to three times a week, but still unable to conceive over two years.

Secondary infertility is when a couple has a child but has stayed for four to five years without conceiving.

The causes of infertility vary for both genders. Male infertility is caused by low sperm production, abnormal sperm production, sexually transmitted infections, blockages that prevent sperm delivery, health problems such as diabetes, among others. In women, age and lifestyle factors are the leading causes of infertility.

“Women fertility declines with age. Thus those over 35 years have difficulties conceiving,” says Dr Ruchik Sarrvaiya of Wings IVF Centre at Nephromed clinic in Nairobi.

Other issues are problems with the reproductive organs and hormones, fibroids, and lifestyle choices such as late marriages, poor diet and having multiple sexual partners that increase the risk of sexually transmitted illnesses which lead to tubes blockages.

Early onset of menopause and abuse of contraceptives are also to blame. Dr Ruchik who has studied in India and Germany says that 80 percent of infertility can be explained and 20 percent unexplained, where unexplained means both man and the woman are healthy but are unable to conceive.

Before the treatment is done, tests are carried out to ensure the reproductive functions and health of the couple are in tip-top shape. This enables the doctor to decide if IVF will be carried out using a couple’s gametes (egg and sperm) or will necessitate donor gametes.

A woman requires daily fertility injections for 12 days to stimulate the ovaries for mature numerous eggs production. Once enough, the doctor harvests the eggs. The eggs are then fertilised with sperm, from the partner or donor, in a petri-dish in a lab. Within five days, one or two embryos are implanted in the woman’s womb. Alternatively, a patient can choose to wait the next month.

The rest of the embryos are then frozen for future use. Women may also choose to freeze their eggs alone. Having worked in both India and Kenya, he has observed demand for IVF increase steadily. Out of 100 couples, he says, 10 to 15 of them required IVF ten years ago. The number has grown to 35 currently and he estimates that in 15 years, 50 out of 100 couples will require IVF.

Surrogacy in Kenya

IVF treatments range from Sh462,000 for a basic procedure and costs may rise to Sh720,000 in case a donor egg or sperm is used and genetic testing is done on the embryos.

Besides IVF, surrogacy is also growing as a form of assisted reproduction. Surrogacy is when a woman agrees to carry a pregnancy to term for another woman.

However, the lack of laws in Kenya has been a pain for parents commissioning surrogates to carry for them their child.

“Surrogacy as a fertility treatment option is done mostly for medical reasons,” says Ayieta Lumbasyo, a medical law and bioethics practitioner at Nairobi IVF Centre.

For surrogacy to proceed, Ms Lumbasyo who is an advocate of the High Court of Kenya explains that clients must meet three criteria. They must be medically cleared, there must be a genetic link to the child and a written surrogacy agreement in Kenya.

The surrogacy agreement is persuasive and shows an intentional relationship between the surrogate mother and commissioning parents. It also stipulates that the surrogate mother relinquishes parental rights and responsibilities and compensation for time taken out due to the pregnancy.

Medical conditions that require surrogacy are, for example, hysterectomy, acute heart and lung failure, a client who is a multiple organ donor or has had repeated miscarriages.

“As for the genetic link, one or both parents must produce the genetic material,” the Master of Science in Medicine graduate from the University of Witwatersrand explains.

Being a surrogate

Surrogates can be known to the clients or can be selected by the fertility centre. Like IVF, surrogacy takes a physical and emotional toll on the surrogates and parents. Thus Nairobi IVF employs a rigorous surrogate recruiting process. Surrogates must be above 25 years old, with a healthy body and womb and must have at least one living child over three years old.

“Counselling is the hallmark of a good surrogacy programme. Carrying a child to term only to give it up requires a person with a stable and sound mind,” she says.

The centre does not accept women without children to become surrogates.

“A complication may arise and one loses their womb. What happens then is that you become our patient instead. Having your child reduces chances of bitterness and regret,” she adds.

The egg harvesting process and fertilisation for surrogacy are similar to that of IVF.

About 50 percent of the surrogates get pregnant on the first implantation, with the number increasing to 80 percent on the second round. The centre conducts IVF with clients coming from as far as the US, and recently, Tanzania and South Sudan.

The remaining embryos in thereafter stored.

Can these eggs and embryos become a thorn in the flesh in case of a divorce or separation?

In Kenya, couples have two options: either discard or donate the embryos in case of death of one or both partners, disappearance or mental incapacitation of either or both partners.

The donation can be done anonymously or a known person. Frontline Medical Consultants add a third option: donations for research. Discussions are also held on who makes these difficult decisions. It is either both or one partner, with the other’s consent. In case of future implantations, both must consent, due to the issue of parental responsibilities.

At Nairobi IVF, such consent must be written and signed by both parties, a lawyer, a doctor, and an embryologist present.

Ms Lumbasyo shares a case where after a couple had undergone IVF, and a successful live birth, they divorced.

“Unfortunately, the woman was not in a position to produce any more eggs. It was only after her husband’s written consent that we implanted the remaining embryo and she became a mother to a bouncing baby boy,” she says.

Dr Omanwa says that a law on reproductive health is way overdue. Such a Bill will settle many arising structural issues such as regulating the field and ethical issues. For example, should there be a registry for donors? In the case of the donor gamete being used, should they be informed? What about inheritance? Can embryos inherit property as seen in developing countries?

In the UK, donors are registered and parents encouraged to inform children when their gamete is used. This opens another can of worms. In the event the donor begets no children due to some unfortunate circumstances, can he say the child his sperm was used on is his? Can the child be used as bait if the donor happens to be an heir to some massive fortune or is a wealthy businessman?

However, Dr Omanwa says divorces among infertile couples are may not so common because couples tend to bond from the struggles they have gone through trying to get a baby.

“Such couples rarely break up and the joy the pitty-patter of tiny feet brings tightens to that bond of love,” he says.