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)
Below are some constitutional and legal issues that invariably arise out of surrogacy applications.
Surrogacy and Same-Sex Relationships
In South African Law same-sex couples and heterosexual couples must be treated in the same manner as the Law recognises heterosexual as well as same-sex civil marriages. Any deviation will be unconstitutional and has been confirmed in numerous cases.
Many children in our society are either brought up by a mother or a father being clear that mothering of a child is not specifically gender-based. In cases of same-sex couples Courts should be cautioned not to apply these couples to tests which could be discriminatory.
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.
The mother who gave birth to the child and her husband, if married to her, was regarded as the parents of that child prior to the enactment of the Act in relation to the child of the commissioning parents and they could only become legal parents after following adoption procedures. The surrogate mother could change her mind and object to the adoption of the baby irrespective of the genetic origin of the child. Uncertainty regarding the parents could impact negatively on the child which had a direct bearing on the best interests of 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.
Here the best interests of the child are addressed, in that the agreement may not be terminated after the artificial fertilisation has taken place. A surrogate mother who is also a genetic parent of the child may, however, terminate the agreement after the birth of the child and prior the 60-day lapse.
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 are protected on termination of the agreement.
The standard should be flexible as individual circumstances will determine the best interests of the child.
When 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 or by setting the bar too high for parents who only desires a child by way of surrogacy. The Court will take into consideration the circumstances of the particular case.
The Surrogate Mother and the Risk of Commercial Surrogacy
Although agencies play an important facilitative role by introducing surrogates and commissioning parents, concern regarding abuse can be a problem. In countries with deep socio-economic disparities and the prevalence of poverty as in ours, the possibility of abuse of underprivileged women is a real and ever-present danger. The ideal would be to regulate and oversee agencies. Payments in contravention of the law can easily be disguised and presented as legal and legitimate payments.
The payments set out in section 301 of the Act should be adhered to and any other payments are prohibited. No facilitation fee to any person who introduced the surrogate mother is allowed. The affidavit should state that no such fee was paid to any person.
For any involved agency, full particulars regarding the agency should be revealed. An affidavit containing the following should be filed:
- business of agency
- any form of payment paid to or by the agency in regard of any aspect of the surrogacy
- detailed involvement of agency regarding
- introduction of the surrogate mother,
- how the information regarding the surrogate mother was obtained, and
- whether the surrogate mother received any compensation from the agency or the commissioning parents.
Full particulars should be set out in the founding affidavit as follows:
- How commissioning parents know surrogate and why she is willing to surrogate
- Surrogate’s background and financial position
- Comprehensive psychologist report on the suitability of surrogate (background, psychological profile, and effect of giving up baby)
- Medical reports on her physical condition and what dangers surrogacy might pose on her or child. Should also include HIV status or other transferable diseases to protect the child and allow the Court’s discretion in confirming agreement
In our view, the application should also state where the gametes will come from, without revealing the identity of the donor.
The Act prescribes in section 295(b) (ii) that the commissioning parents should in all respect be suitable parents to accept parenthood. In a diverse society as ours it will inevitably 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. Personal perceptions should not influence Courts in any decision on the suitability of parenthood or as a surrogate mother. When a Court decides 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.
JA Attorneys’ legal team has vast experience in dealing with Legal and Constitutional Issues arising from Surrogacy Applications. As prominent child custody attorneys in Johannesburg, we are here to assist you with your urgent matter. Contact us today.