SURROGATE MOTHERHOOD AGREEMENTS IN SOUTH AFRICA
Surrogate Motherhood first came to the attention of the South African public in 1987 when a Tzaneen grandmother carried her triplet granddaughters on behalf of her daughter who was unable to fall pregnant and carry a pregnancy to term.
There are no clear statistics documenting the extent of male and female infertility in the western world. What is however apparent is that there has been 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 (Assisted Reproductive Techniques)
The acronym ART which stands for Assisted Reproductive Techniques includes numerous invasive medical procedures which can be performed to assist a person in bearing a child, these techniques include among others: –
i. in vitro fertilization ;
ii. intra-uterine insemination ;
iii. GIFT ;
iv. INTRACYTOPLASMIC Sperm Injection; and
AN HISTORICAL OVERVIEW OF SURROGATE MOTHERHOOD IN SOUTH AFRICA
The mid-1970s to1980s saw Western society readily embracing the first four of these ART processes as being morally acceptable mechanisms for the conception of a child where infertility and other related issues made falling pregnant naturally almost impossible for the married couple. For years, controversy and confusion raged within many sectors of society as to the acceptability of surrogacy as an ethically permissible form of ART. In some quarters of society, especially within the more conservative home, the controversy regarding surrogacy as a viable means of raising one’s own family continues.
Surrogacy is an arrangement in terms of which a woman undertakes to bear a child for another person (or couple) with the intention of handing over the child to that person (or couple) on the birth of the child. The Surrogate Mother enters into the arrangement understanding that she would be required to relinquish all parental responsibilities and rights over the child in favour of the other person (the Commissioning Parent or Parents) immediately upon the birth of the child.
SURROGATE MOTHERHOOD 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. While the Human Tissues Act of 1983 and the Children’s Status Act of 1987 dealt with various aspects contingent upon artificial fertilization, neither of the Acts 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 antithesis of what the parties to such arrangement in fact intended particularly insofar as parental authority and rights of parentage over the child upon its birth was concerned.
The upshot of the absence of legislation dealing with surrogacy arrangements was that in 1987 the South African Law Commission commenced investigation into 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 referred to the Minister of Justice for final review and drafting.
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 was a strong public move towards recognizing surrogacy arrangements as being a viable option to infertility; (2) that there was a dire need for legislation to govern such arrangements; (3) surrogacy arrangements should only be permitted as options of last resort; (4) the commissioning mothers should suffer from a medical condition rendering her unable to bear, alternately carry children to term and this condition should be of a permanent and irreversible nature; (5) at least one of the commissioning persons to such arrangement should be genetically related to the child; (6) the arrangement should be reduced to writing and confirmed by the High Court prior to the surrogacy arrangement being medically initiated; and (7) 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 motive. This recommendation was however that the basic costs associated with pregnancy, labour, and the birth of the baby should be allowed. Guidelines were also provided as to the criteria to be met before a woman could be confirmed as a 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 is 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 the recommendation, the situation under the Children’s Status Act was that parental responsibility and rights over the child would fall within the sole province of the surrogate mother, with the commissioning couple only acquiring such rights through adoption.
Insofar as a partial surrogacy arrangement was concerned, the ad hoc Committee recommended that the surrogate mother, as the genetic and gestational mother of the child, be given 60 days post-birth of the child in which to confirm her decision on whether or not 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 at all times be the predominant consideration, with the High Court having the right to refuse to sanction such arrangement where there was a clear indication that the envisaged surrogacy arrangement if undertaken, would not be in the best interests of the child.
SURROGATE MOTHERHOOD AND CHAPTER 19 OF THE CHILDREN’S ACT 38 OF 2005
Mid 2010 saw the enactment of the Children’s Act 38 of 2005. Chapter 19 of the said Act dealing with Surrogate Motherhood contained many of the aforementioned recommendations of the Commission and ad hoc Parliamentary 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. Although the High Court has frantically tried to deal with the lacunae in the Law in particular insofar as the need for altruism is concerned, clear Legislative direction is needed for this area of Law and Medicine. Very few surrogate mothers are completely altruistically inclined, and yet this is exactly what the law currently requires of the woman who offers to assist. The balancing of interests is a difficult one as first and foremost, babies are not for sale. By the same token, the dearth of Surrogate Mothers to meet the growing demand for pregnancy assistance in the face of increasing male and female infertility and the development of new single-sex family structures equates to a potential violation of a person’s reproductive rights as set out in Section 12 of the Constitution. An expectation of compensation does not necessarily equate to a “bad motive” but just reflects the current economic climate. Having said that, the worldwide trend appears to be towards allowing the payment of a service fee to the surrogate mother. In some countries the said payment to be effected under the watchful eye of a specifically constituted committee for this purpose.
From a right-to-know about one’s start in life, 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 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 (as well as on the identity of any person who provided donor gametes towards the conception of the child). This violation of the child’s rights to proper information pertaining to its status and identity needs at some stage to be addressed. This is particularly critical so that parties to a surrogacy arrangement can fully apply their mind on whether they would like to continue with the surrogacy arrangement in the face of subsequent full disclosure on the identity of all relevant parties to the arrangement.
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 labor-incurred expenditure, as well as their silence on partial surrogacy arrangements 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 to, in part act as an advisor and also as the watchdog for compliance with the Law. Requiring the fertility specialist and his/her team to act as the watchdogs for due compliance with the Law whilst holding the threat of criminal prosecution over their heads where implantation is effected without court authorization, is draconian and indicative of a lack of creativity on the part of the Lawmakers.
While the recommended age determinant for surrogate mothers as provided by regulatory bodies is commendable, 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 and where it is clear that she is not wanting (directly or indirectly) to increase the size of her own family unit.