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Surrogacy is an excellent option for anyone wanting a child who is unable to fall pregnant or have a child without assistance. The process involves 2 parties, the commissioning parent and the surrogate mother. The surrogate mother is the person who will bear the foetus through pregnancy, whilst the commissioning parent (prospective parent) is the person who appoints the surrogate mother.
In order for a surrogate motherhood agreement to be valid and lawful it is required for the agreement to be confirmed by the High Court. If either/ both the commissioning and/or surrogate parent is married or in a permanent partnership, the consent of the spouse or partner is also required. However, if the consent is unreasonably withheld, an application can be made to a High Court for his or her consent to be dispensed with and confirm the agreement regardless.
It is important to know that one is not allowed to receive an income for providing the service of being a surrogate mother. In other words, no person involved in a surrogate agreement may give or promise to give to any person, or receive from any person, a reward or compensation in cash or in kind. This is so that no one decides to make a business out of surrogacy. The only payments that are allowed to be made in terms of surrogacy are those relating directly to the artificial fertilisation and pregnancy of the surrogate mother, the birth of the child, the confirmation of the surrogacy agreement, loss of income caused by the pregnancy and insurance to cover the surrogate mother for anything which may cause death or disability brought about by the pregnancy.
Wonderful as surrogacy is as an option, there is one section of the Children’s Act which has caused a lot of trouble for aspiring parents. Section 294 of the Act deals with the Genetic Origin of the Child. It states that no surrogate agreement is valid unless the conception of the child is affected by using the “gametes” (sperm and egg) of both commissioning parents, or if this is not possible, due to biological, medical or other valid reasons, the “gamete” of at least one commissioning parent or, where the commissioning parent is a single person, the “gamete” of that person.
This is a problem for example where both parents are fertile, surrogacy is therefore not an option, or where a woman who has desperately tried to have children and waits too late for this to be an option.
This was exactly the case in a matter heard by the Constitutional Court. For the sake of privacy, the lady in the case is referred to as AB. AB tried for many years to have children with her husband. After trying to conceive via the good old natural method, they moved onto in vitro fertilisation. This was attempted a total of 20 times which either resulted in a miscarriage or just did not work for other medical reasons. Sadly, the desire for children and the tragedy of the miscarriages caused so much stress in their relationship that it eventually resulted in a divorce.
After the divorce, AB’s desire to be a mother did not fade. She approached the High Court to have a surrogate agreement confirmed. However, by this time, she was over the age of 40 and she had no more eggs to offer. She was no longer
married to a person to donate their gametes and therefore did not comply with Section 294. It was argued in the High Court that this Section was unconstitutional as it violated numerous Constitutional rights, including that of reproductive autonomy. The High Court agreed with her argument and referred the matter to the Constitutional Court.
After reading through the facts, the Constitutional Court found that in actual fact no Constitutional rights were being infringed. The minority decision of the court found for AB, stating that the Section should be changed.
It is the majority decision that counts though, and the majority found that this Section was not unconstitutional.
As there are no biological ties to AB, what she would essentially be doing is adopting a child. The Court ruled against her application as it did not want to encourage the idea of “design a baby”. This is an idea where a person would choose two people in which they think would make a healthy, good looking child, and benefitting from such a choice. It would make way for avoiding hereditary diseases or disabilities in the child and for their children to come, however this has been an ethical debate for many years.