An Overview of the Law relating to Surrogacy

This overview of the law as it relates to surrogacy refers to the case Parte WH and others 2011 (6) SA 514 (GNP).

Surrogacy has very far-reaching implications when it comes to the legal side of such an arrangement and it has been dealt with, in very definite terms, in the Children’s Act which was recently amended.  It is important for anyone considering surrogacy, to be aware of the requirements and to understand that the Supreme Court (or High Court) has to approve all agreements.  This means that interested parties should consult with attorneys to ensure that proper procedures are followed and that the agreements are validated before any other processes begin.

The rights of individuals to bear and raise children is broadly recognised and supported by the State in South Africa through various measures, including the provision of financial assistance, social and other support services.  It encompasses the right to:

• have one’s own child with whom the parents share a genetic link,
• adopt a child under certain circumstances, and more recently
• in recognition of the physical and medical difficulties people may experience in seeking to have a child of their own , the right to have a child through a surrogacy arrangement.

The Act provides, in broad terms, for the legal requirements upon entering such agreements, as well as requiring confirmation from the High Court which renders such agreements valid. The Act followed after considerable thought was given to the legal ramifications of the acknowledgment of surrogacy within our legal framework by the ad hoc committee on surrogacy motherhood.

Given the centrality of the concept of ‘ the family’ in matters involving the best interests of the child, the very understanding of what constitutes a family and the roles traditionally associated with the component members of the family,  has been the subject of considerable attention by our Courts over the past 17 years. The South African Constitution, founded as it is on the principle of equality and non-discrimination, has resulted in the substantial growth of a body of law which seeks to ensure the full enjoyment by everyone of all the rights in the Bill of Rights.

In this context, amongst others, the rights of gays and lesbians to form personal relationships of their choice and to marry and to participate in family life has been unconditionally recognised as being consistent with the principles of equality and dignity enshrined in the Constitution.

Consistent with this theme of the recognition of the rapidly-changing nature of how a family is made up and defined, the place of gender in the determination of the “quality of the parental role” also enjoyed the attention of the Court in the case of Van der Linde, where the Court concluded that :-

“… for decades it has been accepted that the quality of a parental role is determined by gender. It has been accepted that mothering was a component of a woman’s being only. At the present juncture it is to be doubted whether that acceptance can, by itself, serve as a universally prevailing axiom. These days mothering is also part of a man’s being. The concept of mothering is indicative of a function rather than a “persona” and this function is not necessarily situated in the biological mother. It includes the sensitive attachment which flows from the attention devoted from day-to-day to the child’s needs of love, physical care, nutrition, comfort, peace, security, encouragement and support. (…) Today the man has the freedom to reveal and live out the mothering feeling.”

Before the enactment of the Children’s Act, it would appear that the only way in which commissioning parents could become the legal parents of the child was by way of adoption in terms section 17(a) of the Child Care Act 74 of 1983 after the birth of the child.

Most people opt for surrogacy because they cannot conceive or carry a baby to full term, or on account of the risk that the mother’s life will be endangered by pregnancy. Gay and lesbian people in a relationship also have little choice, other than to enter into a surrogacy arrangement if they should wish to have a child genetically linked to either of them.

The Children’s Act now provides the legal framework for willing parties to facilitate surrogacy agreements, provided that the High Court has confirmed, as valid, all relevant surrogacy agreements.

Section 292 of the Act provides for the formal requirements of a valid surrogate motherhood agreement and in terms of Section 295, a court may not confirm the agreement unless certain requirements are met.

The Act is also specific about the content of the issues pertaining to the agreement, which include:

1. consent
2. genetic origin of the child
3. when artificial fertilisation could take place
4. termination of the agreement, and
5. the effect of termination of the agreement.

The Act also deals with the question of payment in respect of surrogacy and generally prohibits commercial surrogacy, while only permitting payments related to compensation for expenses, loss of earnings and bona fide professional, legal and medical services related to the confirmation of a surrogate motherhood agreement.

Despite the fact that the Children’s Act attempts to regulate and comprehensively structure the important aspects regarding surrogacy agreements , the legal implications of this relatively new development in our law could be rather complex and could also have far-reaching consequences for everyone involved.

On a consideration of the Children’s Act, International Laws and our Constitution, it became clear that a myriad of problems may arise surrounding the implementation of the unconditional requirements of the Act.