There are no clear statistics documenting the extent of male and female infertility in the western world. What is however apparent is that there is an increasing demand on the medical profession to assist persons and couples in conceiving and giving birth to children genetically related to both or at least one of them.
ART (Alternative Reproductive Techniques)
ART or Alternative Reproductive Techniques includes numerous invasive medical procedures which can be performed to assist a person in bearing a genetically related child, these techniques include among others: –
i. in vitro fertilization ;
ii. intra-uterine insemination ;
iii. GIFT ;
iv. INTRACYTOPLASMIC Sperm Injection; and
Western society has tended to embrace the first four of these techniques as being morally acceptable mechanisms for the conception of a child. Controversy still however rages within certain sectors of society as to the acceptability of surrogacy as an ethically permissible form of ART. Surrogacy is a situation in terms of which a woman undertakes to bear a child for another person or a couple with the intention of firstly, handing over the child to that person or couple on the birth of the child, and secondly, relinquishing all parental responsibilities and rights over that child immediately upon the birth of the child in favour of the commissioning person or couple.
SURROGACY ARRANGEMENTS PRIOR TO THE ENACTMENT OF THE CHILDREN’S ACT
Prior to the enactment of the Children’s Act 38 of 2005 South Africa did not have any laws governing surrogacy and surrogacy arrangements on its Statute Books. The Human Tissues Act and the Children’s Status Act dealt with various aspects contingent upon artificial fertilization, neither however dealt specifically with the issue of children born out of a surrogacy arrangement. The effect of these Acts on the issue of surrogacy being however the exact antithesis of what the parties to such arrangement in fact intended.
The upshot of the absence of legislation covering surrogacy and surrogacy arrangements was that in 1987 the South African Law Commission commenced investigation on the extent and nature of surrogacy arrangements with a view to offering recommendation and draft legislation thereon. Their Report and the draft Legislation on Surrogate Motherhood was tabled in 1993 with an ad hoc select Parliamentary Committee being established immediately thereafter to effect further investigation hereinto. The report of this Committee was finalized in 1999 and the amended draft legislation emanating herefrom referred to the Minister of Justice for final drafting of legislation regulating surrogacy arrangements.
The conclusions of both the Law Commission’s report on Surrogate Motherhood and that of the ad hoc Committee included inter alia (1) that there is a strong public move towards recognizing surrogacy arrangements as being a viable option to infertility ; (2) that there is a dire need for legislation to govern such arrangements ; (3) that the surrogacy arrangement should be an arrangement of last resort ; (4) that the commissioning mother should suffer from a medical condition rendering her unable to bear, alternately carry children to term and that this condition should be of a permanent and irreversible nature ; (5) that at least one of the commissioning persons to such arrangement should be genetically related to the child ; (6) that the arrangement should be reduced to writing and confirmed by the High Court prior to the parties entering hereinto and the surrogacy arrangement being medically initiated ; and (7) that all the parties to the arrangement should be subject to a strict screening process.
Both the Law Commission and the Parliamentary Committee recommended the outlawing of commercial surrogacy, allowing only for surrogacy arrangements borne out of altruistic motives. The recommendation being however that basic costs associated with pregnancy, labour and post-partum should be allowed. Guideline was also provided as to the criteria for the surrogate mother. Insofar as the position of the child born out of such arrangement was concerned, the ad hoc Committee recommended that where the commissioning couple are the biological parents of the child they should automatically acquire full parental responsibilities and rights over the child. It is noteworthy to mention at this juncture that at the time of making such recommendation the situation under the Children’s Status Act was that parental rights over the child would fall within the sole province of the surrogate mother, with the commissioning couple only acquiring such rights through adoption or by order of the High Court. Insofar as a partial surrogacy arrangement was concerned, the ad hoc Committee recommended that the surrogate mother as genetic and gestational mother of the child be given 60 days post birth of the child in which to confirm her decision to abide by the surrogacy arrangement.
The underlying thread running throughout the recommendations of the Law Commission and the ad hoc Parliamentary Committee being that the best interests of the child had to be the predominant consideration with the High Court having the right to refuse to sanction such arrangement prior to its commencement where there was clear indication that the envisaged surrogacy arrangement, if undertaken, would not be in the best interests of the child.
SECTION 19 OF THE CHILDREN’S ACT 38 OF 2005
Mid 2010 saw the enactment of the Children’s Act 38 of 2005 with Chapter 19 of the Act containing many of the aforementioned recommendations of the Commission and ad hoc Committee. An overview of the provisions of Chapter 19 is dealt with in a separate article what is however of concern is that the current surrogacy laws are not comprehensive enough in that the distinction between partial and gestational surrogacy arrangements and their implications on the parties have not been adequately covered. Additionally, the prohibition on commercial surrogacy undertakings does not take into account the current reality. The worldwide trend appears to be towards allowing the payment of a service fee to the surrogate mother, payment to be effected under the watchful eye of a surrogacy authorization committee or the courts or in accordance with the parameters set by applicable legislation.
It is submitted that the ultimate victim in the criminalizing of the parties’ conduct is the child and there are undoubtedly more creative ways available to dissuade parties from entering into commercial surrogacy arrangements – if that is the aim – then by indirectly labeling the child a product of criminal activity.
From a comparative perspective it is clear that the English model of court-directed transfer of parentage as opposed to the automatic transfer of parentage as provided for in terms of South African Law provides for a more uncomplicated accessing of information regarding the surrogacy arrangement by the child, should the child require such information upon reaching its eighteenth birthday. The South African model which lists the names of the commissioning parents on the original birth certificate, may cause insurmountable obstacles for the child requiring proper identification of its surrogate mother. This violation of the child’s rights to proper information pertaining to its status and identity needs to be addressed.
While Chapter 19 of the Children’s Act closely resembles the enacted laws of many states in America the tendency of the American laws to make provision for compensation beyond pregnancy and labour-incurred expenditure, as well as their silence on partial surrogacy arrangements, surrogacy genetic connections (between that of the commissioning parents and the child), does not appear to be an oversight on their part but a conscious attempt to minimizing the inherent risks of drawn-out litigation and custody disputes as well as the establishment of an ‘underground’ commercial surrogacy industry.
South African surrogacy legislation can certainly benefit from the establishment of a regulatory body for surrogacy arrangements as provided for in certain foreign jurisdictions. The envisaged regulatory body in part act as an advisor and also as the watchdog for compliance with the Law. Requiring the fertility specialist and his team to act as the watchdog for due compliance with the Law and holding the threat of criminal prosecution over his head where implantation is effected without court authorization is draconian and indicative of a lack of creativity on the part of the Lawmakers.
The absence of adequate safeguards for the protection of the child’s best interests is a matter of great concern. The right of the child born of a surrogacy undertaking not to be tainted by the brush of its ‘parents’ criminality is not safe-guarded, access to information concerning the identity of the surrogate mother who is the child’s biological mother is denied, and uncertainty regarding the child’s status is created where the agreement does not accord with the legislative requirements. Additionally, the interests of existing children indirectly affected by the surrogacy agreement are ignored.
Additionally, the eligibility requirement that the surrogate mother has living issue of her own is unnecessarily restrictive and discriminatory. The absence of living issue does not point to an absence of ability for viable delivery, a previous child’s demise may be due to other factors unrelated to pregnancy and delivery and the Surrogate Mother may well wish to assist an infertile party in the absence of any desire to add to her own family. It is submitted that the requirement of living issue, which is not reflected in foreign legislation, will undoubtedly not stand up to constitutional challenge especially, where the potential surrogate mother satisfies the other screening criteria for surrogacy.