Introduction and terminology: Chapter 19 of the Children's Act
A surrogate motherhood agreement is an agreement between a surrogate mother and a commissioning parent where 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 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 commissioning parent or parents are the individual or the couple who intend(s) to raise the child after birth. The term surrogate refers to the substitute or ‘stand-in’ mother who is implanted with the embryo and who takes on the role of mother until birth. There are two forms of surrogacy, namely partial and full. Full surrogacy is where the surrogate has no biological relationship with the child whereas in an instance of partial surrogacy, some form of biological relationship exists.
In South Africa surrogacy as a form of assisted reproduction is a legally recognised procedure currently regulated by Chapter 19 of the Children’s Act 38 of 2005. Surrogacy in exchange for commercial gain is prohibited in South Africa; instead the Children’s Act provides for purely altruistic surrogacy in terms of which the surrogate receives no financial reward for her pregnancy or renouncement of the child. Other pregnancy related expenses are ordinarily paid for by the commissioning parent(s).
There is a default legal assumption in most countries that the women giving birth to that child is the child’s legal mother. However, section 297(1) (a) recognises the commissioning parent(s) as the legal parent(s) from date of birth.
Surrogacy has been available for many years in South Africa, the first recognised case being that of Karen Ferreira-Jorge of Tzaneen in 1987 where a 48 year old mother carried her daughters’ triplets to term. ‘The daughter was unable to bear children of her own and had been discouraged of enlisting the services of an unknown surrogate in fear that the surrogate may renege on her promise to give up the baby at birth.’ Her own mother, after offering her assistance and after the process of ovarian stimulation, gave birth to triplets.
Previous legislation such as the 1986 Regulations Regarding the Artificial Insemination of Persons and Related Matters and the Children’s Status Act 82 of 1987 did not explicitly provide for surrogacy agreements however neither Act expressly prohibited it. The Children’s Status Act defined artificial insemination "as the introduction by other than natural means of male gamete or gametes into the reproductive organs of a woman or by placing the product of a union of a male and female gamete or gametes which have been brought together outside the human body in the womb of that women", an all-encompassing definition capable of the inclusion of many of the procedures used to give effect to surrogacy agreements.
In 1987, the absence of specific legislation governing surrogacy led the South African Law Commission to begin investigating the matter. Following the circulation of a Questionnaire on Surrogate Motherhood, the South African Law Commission published a working paper on the topic of surrogacy.
In 1993 a report on surrogacy and draft legislation was tabled before an ad hoc parliamentary committee established specifically for the purpose of further investigation into the matter. Public hearings were conducted and study tours took place in the North West Province, Northern Province, Eastern Cape Province and KwaZulu Natal Province as well as visits to the United States and the United Kingdom. The four above-mentioned provinces of South Africa were specifically targeted; the rationale being as they were predominantly black regions where most cultures permitted surrogacy as a form of assisted reproduction. The report was finalised in 1999 and the draft legislation was referred to the Minister of Justice for finalisation.
The underlying thread running throughout the Law Commissions’ and the ad hoc Committees’ recommendations were that surrogacy should not be banned in South Africa but must be recognised and regulated through legislation. Most importantly, in all situations of surrogacy, the best interests of the child must be of principal consideration. The High Court, which is responsible for the confirmation of the surrogacy agreement before it may be entered into, must refuse to sanction such agreement if it is not in the best interests of the child as stated in section 28(2) of the Constitution Act 108 of 1996.
In 2003, after a five year period of consultation with organisations representing the children’s sector, the South African Law Reform Commission tabled a draft bill aimed at enhancing the rights of vulnerable and poor children, addressing the increase in child abuse and neglect and providing better care for all children. In June 2005, the Children’s Bill was approved by the National Assembly in line with South Africa’s obligations as a party to the United Nations Convention on the Rights of a Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC), both ratified by South Africa in 1995. The object of the ACRWC was the belief of the African Union that the UNCRC: ‘[Overlooked] important socio-cultural and economic realities particular to Africa. [The ACRWC] emphasises the need to include African cultural values and experiences when dealing with the rights of the child’.
The Children’s Bill introduced groundbreaking legislation. Provisions provided for the ‘lowering of the age of majority, outlawing virginity testing, introducing a child abusers registry and more importantly, the Children’s Bill, in the form of Chapter 20, was the first legislation to openly regulate surrogate motherhood and establish surrogacy as a legally recognised procedure of assisted reproduction’.
Content of Chapter 19 of the Children's Act
i) Formalities – Section 292
Surrogate motherhood agreement must be in writing, signed by all the parties thereto and confirmed by the High Court. The agreement must be entered into in the Republic and it is imperative that the surrogate mother be domiciled within the Republic.
ii) Consent - Section 293
The consent of all parties to the agreement must be obtained ie the husband, wife or partner of the commissioning parent and the surrogate mother, before the court may confirm the agreement. Where such consent is unreasonably withheld and the husband, wife or partner is not the genetic parent of the child, the court may confirm such agreement.
iii) Genetic origin of the child - Section 294
At least one of the commissioning parents is required to be a gamete donor for the purposes of the genetic origin of the child (implication – at least one commissioning parent must be fertile).
iv) Requirements for the confirmation by court - Section 295
The commissioning parent(s) are permanently unable to give birth to a child (implication – at least one commissioning parent must be infertile). The commissioning parents must be suitable persons to accept the parenthood of the child to be conceived and understand the legal consequences the agreement.
The surrogate must also be competent, suitable to act as a surrogate mother and must also understand the legal consequences of the agreement. The court must be certain the agreement has been entered into for altruistic not commercial reasons (contractual implications).
The surrogate must have had at least one pregnancy and viable delivery and a living child of her own (implications – only woman who have children of their own may be surrogates). The agreement must include specific provisions for the child that are above all in his or her interests.
v) Artificial fertilisation - Section 296
Artificial fertilisation of the mother may not take place before the agreement is confirmed by the court and/or after the lapse of the 18 months from date of confirmation of agreement and such fertilisation must be done in accordance with the provisions of the National Health Act 61 of 2003.
vi) Status of a child born of the agreement - Section 297
For all purposes, a child born in terms of a valid surrogacy agreement is deemed the child of the commissioning parent(s) and the surrogate has no right of parenthood or care of the child, nor a right to contact with the child unless otherwise provided for. Thus no claim for maintenance or of succession can arise against the surrogate or her family.
vii) Termination – Section 298
In the case of partial surrogacy, a surrogate mother may at any time prior to a period of 60 days after the birth of the child terminate the agreement through notice to the court. The court must be satisfied that she has done so voluntarily understanding the effects thereof and will only be liable for compensation for prior payments made by the commissioning parents.
viii) Effect of termination – Section 299
If the agreement is terminated before birth the child is the child of the surrogate. No rights vest in the commissioning parents, unless they are acquired through adoption processes and no claim for maintenance may arise. If the agreement is terminated after birth, all parental rights which the commissioning parents may have obtained are terminated and vest in the surrogate. (Effectively – the implications of a partial surrogacy agreement is that the position of parentage is held in abeyance. The surrogate is in fact the legal mother of the child to be born of the agreement pending her decision to renege or abide by the agreement. This could have disastrous consequences for all parties concerned).
ix) Termination by CTOP – Section 300
The surrogate agreement may be terminated through termination of the pregnancy carried out in terms of the Choice on Termination of Pregnancy Act 92 of 1996 and the decision to undergo abortion lies solely with the surrogate mother. However, the medical practitioner carrying out such procedure must first inform the commissioning parents and allow them to consult the surrogate before termination is carried out and the surrogate will only be liable for prior payments made by the commissioning parents where the decision to abort is for reasons other than medical grounds.
x) Prohibition of payments – Section 301
All payments in respect of surrogacy agreements are prohibited. No surrogate agreement may be entered into with the result that a party agrees to receive or to give a reward or compensation in money or in kind. The only forms of compensation that will be permitted will be those which are directly related to those expenses incurred in the fertilisation and pregnancy of the surrogate, the birth of the child and the confirmation of the agreement by the court; any loss of earnings suffered by the surrogate as a result of the agreement; insurance for the surrogate in cases of death or disability and any bona fide legal and medical assistance which occurred during the agreement is entitled to reasonable compensation.
xi) Identities of parties – Section 301
Written consent of the parties is required if details of the agreement are to be published and no person may publish any facts which reveal the identity of the child born. The Deputy Judge President of this Division issued a practice directive no 5 of 2011 regarding all applications for confirmation of surrogate motherhood agreements in terms of section 295 of the Act as follows:
"2. In terms of Section 295;
2.1 the identity of the parties to court proceedings with regard to a surrogate motherhood agreement may not be published without the written consent of the parties concerned; and
2.2 no person may publish any facts that reveal the identity of a person born as a result of surrogate motherhood agreement.
3. In light of these provisions, prospective applicants have from time to time sought directives from this office as to whether such applications are to be placed for hearing on the ordinary roll, or whether they are to be placed for hearing in chambers.
4. A directive is accordingly issued that;
4.1 A party who seeks to bring an application in terms of the section must first have the application issued by the Registrar in the ordinary course;
4.2 The court file with all its contents must however, be brought to this office, immediately after issue;
4.3 This office will upon receipt of the court file and the application, allocate the matter for hearing to a particular Judge, who shall give further directives as to how the matter is to be heard;
4.4 The applicant’s attorneys must specifically refer this office and the court hearing the application to the provisions of Section 295 of the Act when the court file is delivered to this office and when the application is heard.
4.5 The parties must comply in all respects with such further directives and requirements as may be stipulated by the Judge to whom the file has been allocated."
xii) Agency – Section 302
No person may artificially fertilise or render such assistance in an artificial fertilisation unless the agreement has been confirmed by the court. No person may in any way for, or with a view to compensation, make known that any person is or may be willing to enter into a surrogate mother agreement.
Surrogacy for commercial gain is illegal, thus the so called ‘rent-a-womb’ trade is outlawed. The only payments which are permissible are those which are directly related to the pregnancy and the surrogacy agreement. One of the commissioning parents is required to be a gamete donor with both the commissioning parents as well as the surrogate mother being suitable and competent candidates.
Surrogacy agreements must be confirmed before the High Court. The surrogate mother has the right to terminate the pregnancy provided that the conditions in section 298 are met. In the case of partial surrogacy agreements, the surrogate mother may terminate the agreement through notice within 60 days of birth. The commissioning parents are deemed the parents of the child from date of birth and need no longer adopt as was the case under previous legislation.
Important case law
In the 2010 case of Ex Parte WH and Others the court set out to prescribe guidelines for the future determination of surrogacy cases in South Africa. I have attached hereto a copy of the judgement for your perusal. What is interesting to note however is that the court did not deal with the issue of partial surrogacy and how to deal with these types of agreements in future – here lies the lacuna in SA law.