Overview: International Law relating to Surrogacy
Information in this article has been taken from the case file Parte WH and others 2011 (6) 514 (GNP)
How does South Africa compare with other countries in respect of legal requirements for surrogacy? While there appears to be a growing international trend to provide an adequate legislative basis to deal with surrogacy, informal surrogacy has been in existence for a long time. Allegedly practised as far back as the biblical era, it is invariably shaped by the cultural, traditional and social norms of a given society. Family members of friends motivated by altruism would become surrogate mothers without any formalities being entered into and this practice probably continues without the oversight or the intervention of the State.
However, there is also growing recognition that private and familial relationships may not always provide the answer to parents who seek to have a child of their own. This has resulted in the recognition that there needs to be some form of jurisdiction of formal surrogacy and that it should be regulated.
Due to the huge diversity in culture, customs and traditions across nations, there is, understandably, no consistent international practice in the field of surrogacy. While most countries prohibit commercial surrogacy, with India being the prominent exception, the responses of other countries have been varied, ranging from an outright prohibition of both altruistic and commercial surrogacy, to the recognition and legislative regulation of altruistic surrogacy.
France, Iceland and Italy have legislative provisions prohibiting all forms (both altruistic and commercial) of surrogacy. Other countries seek to provide a comprehensive legal framework to regulate surrogacy. Surrogacy, along with ovum and sperm donation has been legal since 1992 in Georgia (formerly in the USSR/Soviet Union). Under applicable law, a donor or surrogate mother has no parental rights over the child born. In the Ukraine, surrogacy and surrogacy in combination with egg/sperm donation, have been legal since 2002. Neither the donor nor the surrogate mother has parental rights over the child born, which is legally the child of the prospective parents.
In Israel, the Embryo Carrying Agreements Law of 1996 legalised gestational surrogacy (this is where a surrogate is implanted with an embryo created by in-vitro fertilisation, using the egg and sperm of the intended parents. The resulting child is genetically related to the intended parents, and genetically unrelated to the surrogate). This law made Israel the first country to implement a form of state-controlled surrogacy, in which every surrogacy agreement must be approved by the state. A state–appointed committee permits surrogacy arrangements to be filed only by Israeli citizens who share the same religion. Surrogates must be single, widowed or divorced and only infertile heterosexual couples are allowed to hire surrogates. The numerous restrictions on surrogacy under Israeli law have prompted some intended parents to seek surrogates outside the country.
In the Netherlands and Belgium there is a prohibition on commercial surrogacy while altruistic surrogacy is permitted.
In Canada, the Human Reproduction Act of 2004 recognises surrogacy for altruistic purposes, while prohibiting commercial surrogacy. The stance of the Canadian Courts before the enactment of the 2004 Act was generally to recognise the commissioning parents as the legal parents of the child.
Australia allows for individual state regulation on surrogacy. In Queensland all forms of surrogacy are prohibited, while in Victoria commercial surrogacy is forbidden and altruistic surrogacy is allowed in some limited circumstances. While Western Australia and South Australia allow for altruistic surrogacy under the Surrogacy Act of 2008 and the Family Relationships Act of 1975, it is only available for legal couples of the opposite sex. Single people and same sex couples may not enter into altruistic surrogacy arrangements.
In the United States of America, individual states regulate surrogacy under different laws, which range from a total prohibition of all forms of surrogacy on the one hand, to the recognition of commercial surrogacy on the other, with some states in-between allowing for altruistic surrogacy, while prohibiting commercial surrogacy.
In California the position is that single men, single women, heterosexual couples and GLBT (gay, lesbian, bisexual and transsexual) couples are successfully able to obtain parental rights. In order to list the intended parents on the birth certificate, an order of the Superior Court is required wherein the surrogacy agreement is acknowledged and the position of the intended parents is confirmed. In Florida the intended parents must petition the court within three days of the child’s birth for an ‘expedited affirmation of parental status‘, at which point the Court must schedule a hearing of the matter. If the court is satisfied that the intended parents have entered into a valid surrogacy contract and that at least one of them is the child’s genetic parent, the Court would enter an Order finding the intended parents to be the legal parent of the child.
In conclusion, it does appear that the position adopted in the Children’s Act in South Africa is on par with the international position in countries where surrogacy is allowed.