Legal and Constitutional Issues arising from Surrogacy Applications

The contents of this article refer to the case Parte WH and Others (2011) (6) SA 514 (GNP)

Certain constitutional and legal issues invariably arise out of surrogacy applications and we deal with some of them below.

SURROGACY AND SAME SEX RELATIONSHIPS

As South African Law recognises heterosexual as well as same sex civil marriages and in the light of the fact that no discrimination on grounds of sexual orientation is allowed. Same sex couples must be treated in exactly the same manner as any heterosexual couple and any deviation from that will be unconstitutional. This has already been confirmed in numerous cases.

In our view, care should be taken that different tests are not applied to same sex couples which could be discriminatory. For example, in some of the cases, same sex couples were required to show that there will be so-called “maternal influences” which the child would be subjected too. The mothering of the child is a function that very often does not have anything to do with the gender of a parent. In any event many children grow up without a father or a mother and the Court should safeguard that it does not try to create a utopia for children born from surrogacy which is far removed from the social reality of society.

If one considers the provisions of Section 292(1) (c) then it is evident that the Legislature has contemplated that a single person may also be a commissioning parent. This appears to be in line with the prohibition of non-discrimination located in Section 9 of the Constitution.

THE BEST INTERESTS OF THE CHILD

In terms of section 28(2) of the Constitution a child’s best interests are of paramount importance in every matter concerning the child. This approach is echoed in section 7 of the Act.

Prior to the enactment of the Act the position with regard to the acquisition of parental responsibilities, in relation to the child by the commissioning parents was that the mother who gave birth to the child and her husband, if married were regarded as the parents of the child. Therefore the commissioning parents could only become the legal parents if they followed adoption procedures. The result of this was that where the surrogate mother changed her mind and did not wish to consent to the adoption of the baby she could do so irrespective of the genetic origin of the child. This issue was clearly a concern as it could impact directly on the best interests of the child as uncertainty regarding the parents could impact negatively on the child.

In terms of section 297(b) and (c) of the Act the surrogate mother has to hand the child over as soon as is reasonably possible after the birth and neither she or her partner or relatives have any right of parenthood or care.

The best interests of the child are furthermore addressed, in that the agreement may not be terminated after the artificial fertilization has taken place. However, a surrogate mother who is also a genetic parent of the child may prior the lapse of the 60 days after the birth of the child terminate the agreement.

Section 298(2) of the Act dictates that the Court must terminate the confirmation of the agreement upon finding, after notice to the parties and a hearing, that the mother has voluntarily terminated the agreement and that she understands the effect of the termination, and a Court may issue any other appropriate order if it is in the best interests of the child. In the light of the fact that the Court can issue “an appropriate order” the Court will be in a position to ensure that the best interests of the child is protected on termination of the agreement.

The best interest principle has not been given an exhaustive content, but the standard should be flexible as individual circumstances will determine the best interests of the child.

A Court considers the question of the best interests of the child care should be taken that the rights of the commissioning parents in terms of the Bill of Rights and the Promotion of Equality and Prevention of Unfair Discrimination Act, Act No. 4 of 2000 are not violated by unnecessary invasion of the privacy of commissioning parents or by setting the bar too high for parents whose only option is to have a child by way of surrogacy. This will entail a value judgment by the Court taking into consideration the circumstances of the particular case.

THE SURROGATE MOTHER AND THE RISK OF COMMERCIAL SURROGACY

While agencies that introduce potential commissioning parents to potential surrogate mothers generally play an important facilitative role, there are at the same time concerns that the involvement of agencies in the introduction of surrogate mothers can also easily lead to abuse. One would be naïve not to see how it is possible to develop to a point where “a womb for hire” could become de facto part of surrogacy practise. From an overview of international practise it becomes clear that, particularly in countries such as ours with deep socio-economic disparities and the prevalence of poverty, that the possibility of abuse of underprivileged women is a real and ever present danger. Ideally the involvement of agencies should be the subject of regulation and oversight in order to avoid abuse which ordinarily is very difficult to detect from the face of a contract of surrogacy. Commercial surrogacy can quite easily be disguised and payments in contravention of the law can just as easily be included under the guise of legal and legitimate payments.

Any payment to any person other than those set out in section 301 of the Act is prohibited. This would include any facilitation fee to any person who introduced the surrogate mother to the commissioning parents or any compensation of any nature other than those that the Act makes provision for and which can only include the expenses of the surrogate mother as set out in the Act, legal and medical expenses. The affidavit should state that no such fee was paid to any person.

If any agency is involved, full particulars regarding that agency should be revealed. An affidavit by the agency should also be filed containing the following:

the business of the agency
whether any form of payment is paid to or by the agency in regard of any aspect of the surrogacy
what exactly the agency’s involvement was regarding the
1. introduction of the surrogate mother,
2. how the information regarding the surrogate mother was obtained by the agency, and
whether the surrogate mother received any compensation at all from the agency or the commissioning parents.

Full particulars should be set out in the founding affidavit on how the commissioning parents came to know the surrogate mother and why she is willing to act as a surrogate to them. The surrogate mother’s background as well as her financial position should be investigated and set out in the affidavit. Furthermore a comprehensive report by psychologist is essential to assess the suitability of the surrogate mother. This should deal in particular with her background, psychological profile and the effect that the surrogacy and the giving up of the baby will have on her. Full medical reports should also be obtained regarding her physical condition to indicate whether surrogacy pose any dangers for her and/or the child. In our view the medical report should deal with the HIV status of the mother, as well as any disease that could be transferred from her to the child in order to protect the child and to allow the Court to exercise its discretion properly in confirming the agreement.

In our view, the application should also state where the gametes will come from, without revealing the identity of the donor.

A SUITABLE PARENT

The Act prescribes in section 295(b) (ii) that the commissioning parents should in all respect be suitable parents to accept parenthood , which raises the critical question as to who would constitute such ‘suitable persons” and what would their attributes be . In our view the individual idiosyncrasies of judicial officers should not determine the matter nor should the dominant prevailing view (whatever it may be) in society be necessarily decisive of the matter. One person’s idea of a suitable parent may vary significantly from that of the next person. The bewildering diversity that is South Africa will mean that cultural, social, religious backgrounds as well as issues such as gender may well be just some of the factors which may form views on what a suitable parent may be. Therefore Courts should consciously guard that in the exercise of their discretion personal perceptions should not operate to influence any decision on the suitability of a person to either accept parenthood or to act as a surrogate mother. On the other hand a Court should have regard to the personal and character details of a commissioning parent and in this regard details of previous criminal convictions, particularly those relating to violent crimes or crimes of a sexual nature should be disclosed and the circumstances surrounding them should be fully set out.

It would be timely to remember that for most people there are no restrictions or prohibitions on their ability to procreate. We should accordingly guard against setting unreasonably high standards that are not justifiable for people who choose surrogacy as an option for having a child. To do so will contravene the spirit of the principle of equality enshrined in the Constitution and the Equality Act. When a Court needs to decide on the suitability of a parent in our view an objective test should be applied which would include an enquiry into the ability of the parents to care for the child both emotionally and financially and to provide an environment for the harmonious growth and development of the child, bearing in mind the constitutional principles already referred to.