Womb For Rent: Terms and Conditions Apply
Updated: Aug 15, 2019
On the 2nd of October, 1987 the world woke up to the news that a South African woman had given birth to her three grandchildren. No, it’s not a typo – you did indeed read that she gave birth to her own ‘grandchildren’. This occurrence marked the first international case of a woman successfully carrying her daughter’s transplanted embryos and also the first recognised case of surrogacy in South Africa. Unfortunately, it did not mark the first traditional surrogacy in the world, as this was claimed 11 years earlier by US lawyer, Noel Keane when he drafted the first legal surrogacy agreement. Both these cases raised additional ethical and legal questions to the already heated surrogacy debates. You would think almost 32 years later, there wouldn’t be anymore noteworthy legal or ethical issues with surrogacy, but that does not seem to be the case. Today surrogacy is still rife with debate and prohibited in some countries.
Let’s start with what exactly is ‘surrogacy’, simply explained it’s a process where a woman (usually known as the surrogate mother) carries a baby for another person or couple (usually known as the commissioning parent or parents). In general, the following four types of surrogacy exists:
In 1987, when the triplet grandchildren were born, there were no specific laws regulating surrogacy. In fact, the supposed grandmother automatically became the legal guardian of the triplets and her daughter had to apply to adopt them.
Fortunately, today surrogacy is adequately regulated by the Children’s Act 38 of 2005 (Chapter 19) and the National Health Act 61 of 2003 (Chapter 8) including the Regulations relating to Artificial Fertilisation.
I used to think that surrogacy was mostly used in the situation where the potential parents were living a life of luxury, and the mother didn’t want to lose her figure. Easy solution: opt for somebody else to carry the next family business tycoon. It turns out I might have been watching too much TV. This is not the case at all. Infertility is a legal requirement to be approved for the surrogacy process. A couple is regarded as infertile if they have not conceived after 12 months of trying, or 6 months if the woman is older than 35 (once again as females we’re reminded of that awkward tick-tock of our biological clocks).
The next legal requirement is a surrogate motherhood agreement and here is where it gets a bit tricky. The agreement needs to be in writing, and the High Court must confirm the agreement. The court has a number of requirements before they will confirm the agreement. The requirements focus on both the surrogate mother and the commissioning parent(s). When the Court looks at the commission parent(s), they should be able to confirm the following:
The commissioning parent(s) are not able to give birth to a child (this condition must be permanent and irreversible);
They are competent, suitable for parenthood and understand the legal consequences;
An agreement must be in place which makes adequate provision for contact, care, upbringing and general welfare of the child.
Once, all of the above has been confirmed; the Court needs to approve of the suggested surrogate mother. Here they’ll look if she ticks the following boxes:
Competent to enter into an agreement;
Suitable to act as a surrogate mother;
Understands and accepts the legal consequences (most importantly that she will have to give the baby to the commissioning parents);
She is not using surrogacy as a source of income and that the agreement is based on altruistic reasons;
She must have a documented history of at least one pregnancy and viable delivery AND have a living child of her own (all of this is to prevent a situation where the surrogate mommy wants to keep the baby).
And then of course, even after going through this rigorous process, the agreement will lapse after 18 months. Clearly, surrogacy is not as easy as the television and magazines portray it.
Although the ultimate goal of surrogacy is to provide the commissioning parent(s) with a child, the surrogate mother also has legal rights which should be considered. So, may she terminate the pregnancy? Yes, the decision to abort ultimately lies with the surrogate mother (the usual laws apply here). If she does decide to terminate, she must inform and consult with the commissioning parent(s) before the termination is performed. The other legal right she has is to terminate the surrogacy agreement. She may only terminate the agreement and consequently, keep the child if she is the genetic parents of the child (if she donated an egg cell to conceive the child). She can exercise this right within 60 days after the birth and once again the court must be involved with this process as they will be required to approve the termination of the agreement. If the agreement is terminated, the mother incurs no liability (not even breach of contract – if you were perhaps leaning in that direction). She merely needs to reimburse the commissioning parents for any reasonable payments they made towards the pregnancy. While we’re focusing on the reasonable payments, there are a few important things which need to be mentioned here.
Most importantly, commercial surrogacy is prohibited in South Africa.
The surrogate may only receive remuneration for expenses that relate directly to the artificial fertilisation, pregnancy, birth and confirmation of the agreement. Additionally, she may claim for loss of earnings as a result of the surrogacy, and the commissioning parents must have insurance to cover her for death or disability brought about by the pregnancy. Unfortunately, splurging on a maternity wardrobe and a weekly foot massage is out of the question.
So, you might be wondering about the third party in this agreement – the child born out of the surrogacy. Will the child be considered to be the legal child of the commissioning parents or the surrogate? This depends on the validity of the agreement. If a valid agreement exists then the baby will be the legal child of the commissioning parents. On the other hand, if the agreement is invalid, then the kiddo becomes the legal child of the surrogate mother and her husband (but only if he consented to the surrogacy). Let’s assume for a moment, that the agreement is valid and the child grows up with the commissioning parents. Of course, at some stage, the child might start to ask questions about his or her birth. The standard responses of either he/she was delivered by a stork or caught as a monkey in the jungle will only suffice for a few years. Once the parents are placed in the position where they need to provide more information, the law is stringent on what may be revealed to the child. Any medical information relating to the genetic parents may be disclosed at any stage, but any other information may only be revealed once the child reaches the age of 18. However, the identity of the person whose gamete was used for the artificial fertilisation (if the parents perhaps used donor egg or sperm) and the identity of the surrogate mother may not be revealed at any stage.
Interestingly, a surrogacy agreement can only take place if at least one parent provides a gamete for the surrogacy.
This might sound like an irrelevant requirement if you are imaging the scenario where two commissioning parents are considering a surrogate. But what if it’s a single commissioning parent who is infertile?! In this case, he or she will not be legally allowed to enter a surrogacy agreement. Shocking right? A fascinating case on this (AB and Another v Minister of Social Development ) was heard in our courts in 2016. A 55-year old lady who is infertile approached the court after she underwent 18 cycles of IVF to conceive a child. She based her case on the fact that she is of opinion that section 294 of the Children’s Act (here it says that one gamete is required) is unconstitutional as it infringes her rights to equality, human dignity, reproductive autonomy, privacy and access to healthcare. The High Court agreed with her argument and declared that the section is unconstitutional. Sadly, here is where the catch comes in. For a section to be regarded as unconstitutional, the case needs to be heard in the Constitutional Court, and they need to agree that the section is invalid. This case went to the Constitutional Court, and they found (split of 7/4) that the section is constitutionally valid and does not limit constitutional rights. Their decision was mostly based on the fact that the section protected and ensured that a child can know at least one of their genetic parents. (If you’d like to read this case, click here)
NB: When reading surrogacy information online, check the publication dates. A few sites’ information is based on the High Court decision and states that the section has been invalidated. This is incorrect. The Constitutional Court has the last say in SA, and thus their decision reflects the current law.
The concept of surrogacy has come a long way from where it was in the 1980s. For many, it has become an acceptable method of conceiving a little one. Others still have their opposing views on the matter. Either way, with the rapidly advancing techniques in assisted reproductive therapies surrogacy, is definitely here to stay. What is debatable though, is whether the state should have such a significant say in how we choose to exercise and access our reproductive rights.
What is your opinion on using a surrogate? Do you agree with the Constitutional Court’s decision on the use of at least one parent’s gamete or are you in agreement with the High Court? The Patient Project would like to know! Share your thoughts with us in the comments below or on our social media pages: