Children are a blessing and there is no greater gift in my mind than to provide someone deserving with a child. This can take place in two ways: donating eggs or sperm (gametes), and surrogacy.
South African Law recognises and legislates both gamete donation and surrogacy. I will discuss them separately in this article. The most relevant piece of legislation is the Childrens Act No 38 of 2005 (hereinafter referred to as “the Act”).
Our law does allow for the donation of gametes. One can donate more than once and you may even claim financial compensation for it. The donations can also be anonymous. There is a limit, however, to egg donation. The egg donor may not have more than five live born children from donated gametes.
In terms of the Act the donor will have no rights or responsibilities for any child born of the gametes donated, unless the donor is one of the commissioning parents in a surrogacy arrangement.
A surrogate is a woman who carries a baby on behalf of future parents who are medically unable to do so. The future parents are referred to by the Act as “commissioning parents”. The commissioning parent(s) must make use of at least one – if not both – of their own gametes in the fertilisation process. The artificial fertilisation of the surrogate mother may not take place until the agreement has been signed and ratified by court.
- The agreement must be in writing and signed by all the parties involved.
- It must be entered into in the Republic and both the commissioning parents and the surrogate mother must live in the Republic.
- The agreement must then be ratified by the High Court.
- The agreement must include adequate provisions for the care, upbringing and general welfare of the child.
Consent of the spouse or partner
- Where commissioning parent is married or involved in a permanent relationship, they need the written consent of that spouse or partner.
- Where the surrogate mother is married or involved in a permanent relationship, they need the written consent of that spouse or partner.
Confirmation by court
- The commissioning parent(s) must show they are medically unable to give birth and the condition is permanent and irreversible.
- The commissioning parent(s) and surrogate mother must show that they can agree with and understand the implications of the contract.
- The surrogate mother may not use the surrogacy as a source of income and her intentions must be altruistic and not for commercial gain.
- The surrogate mother must have at least one successful birth and at least one living child of her own.
- The commissioning parents must show that they have a stable home environment and that the needs and care of the child will be taken care of in the event of death or divorce of the commissioning parents.
There are numerous legal requirements in terms of the Act. Following is a summary thereof. If you are considering surrogacy, you are advised to first seek legal advice and have a legal professional draft the agreement and guide you through the process.
How long is the agreement valid for after the court has ratified it?
You have 18 months after the court has ratified the agreement to start artificial fertilisation.
What rights does the surrogate mother have?
The short answer is none. The commissioning parents are regarded as the legal guardians with all the rights and responsibilities that comes with that. That said, it must be noted that if the agreement is not valid the surrogate mother becomes the legal guardian of the child.
May the surrogate mother terminate the agreement?
Where the surrogate mother is also the genetic parent of the child then she may within 60 days after the birth give written notice of termination of the agreement and keep the child. These scenarios arise where the surrogate mother is also the gamete (egg) donor.
May the surrogate mother have an abortion?
Yes. The Choice on Termination of Pregnancy Act, read with the Childrens Act, allows the surrogate mother to terminate the pregnancy. In doing so, the agreement will automatically terminate. That said, the surrogate mother must consult with the commissioning parents prior to making this decision. The final decision remains that of the surrogate mother.
Written by Charles Ballie