Surrogacy opens a route, to parenthood for those who cannot conceive naturally. In South Africa the practice is tightly controlled to protect all parties, importantly the child. The cornerstone of the protective mechanisms is Chapter 19 of the Children’s Act 38 of 2005 which outlines a framework for surrogacy. The principle of the framework is to forbid any commercial gain for the surrogate beyond reimbursement of legitimate expenses. The focus point for surrogacy agreements, arrangements or otherwise, will remain to reflect what would be in the best interests of the child.
To this end, we must turn to the Children’s Act. The Children’s Act characterises and defines a surrogate motherhood agreement [Surrogacy Agreement], to mean – an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent.
The nature of surrogacy, parenthood, parental rights and responsibilities is by all accounts personal and important to the parties. The legislators have considered this, and have ascribed certain formalities to help protect all persons involved. The legislation gives certain mandatory guidelines in respect of these agreements to be valid. For instance, the legislation includes that for the agreement to hold weight there must be a relation, between the child and at least one commissioning parent, established through the use of that parent’s gametes. Further, the “commissioning parent(s)” must be domiciled within the Republic of South Africa. What’s more, it is also required that should the commissioning parent be in a long-standing / permanent relationship, the Court will require the consent of the permanent partner. Similarly so, consent will be required of the permanent partner / husband of the surrogate mother.
Now we get to the important formalities. All the involved parties must file an application, with the High Court to secure confirmation before any artificial fertilisation can begin. If that approval is not obtained the agreement will be considered without effect. The Court will be looking into each party, to ensure that they understand the rights and responsibilities which will be ascribed to them, that they are fit and proper to be parents, and that they are aware of the agreement which they are entering into.
There are certain duties given and ascribed to the parties:
Surrogates’ Duties: The woman must be, in emotional health having previously delivered a healthy child. Her obligations include completing all required examinations maintaining a lifestyle throughout the pregnancy seeking appropriate medical care when needed and handing over the baby after birth without asserting any parental rights in gestational cases. She may not terminate the pregnancy on her initiative except where she has consulted with the commissioning parents beforehand, for a medical reason, or where the choice has been approved by a court.
Commissioning Parents Duties: Prospective commissioning parents must first demonstrate, through assessment that they are infertile or otherwise unable to carry a pregnancy. The obligations which do fall to them include the safeguarding the child’s best interests and assuming full parental responsibility the moment the child is born.
The parties can further agree for certain forms of compensation towards the surrogate mother. Importantly, no compensation may be given which would be monetary gain. The compensation is limited to real and consequential expenses for the carriage of a child on behalf of the commissioning parents. This would include, direct expenses for the artificial insemination and pregnancy, any insurance or medical expenses, and also a consideration for the lost earnings / income of the surrogate mother whilst carrying the child to term.
Even though the surrogacy agreement is aimed at saving future disputes, it can still happen. Whether disputes stem from a disagreement, over termination of a pregnancy or from a breach of the agreement, must be handled according to the dispute‑resolution provisions set out in the agreement. If mediation fails the parties may turn to the High Court, which has the power to confirm the arrangement or to unwind it should the court conclude, what would be in the child’s best. The court can call upon experts such as psychologists or social‑work professionals to assist its decision‑making. In the case of a traditional surrogacy a surrogate might seek parental rights, but that request is subject, to thorough judicial review that prioritises the child’s best interests.
In short, the South African legislative framework, for surrogacy attempts to thread together the yearning of families for children, with a lattice of safeguards obliging scrupulous observance of the Children’s Act.
