WORKING DRAFT OF REPORT: OCTOBER 1998
OCTOBER 1998
WORKING DOCUMENT
FINAL REPORT OF THE AD HOC COMMITTEE ON REPORT OF THE SOUTH AFRICAN LAW COMMISSION ON SURROGATE MOTHERHOOD, DATED OCTOBER 1998
TABLE OF CONTENTS PAGE
1. Introduction 3- 4
2. Work method 5
3. Terminology 5 - 8
4. Current legal position 8 - 9
5. Summary of research results 9
5.1 Types of surrogacy 9
5.1.1 Informal surrogacy 9 - 10
5.1.2 Formal surrogacy (Full and Partial surrogacy) 10 - 11
5.2 Qualifications 11
5.2.1 Qualifications for the surrogate mother 11 - 13
5.2.2 Qualifications for commissioning parents 13 - 15
5.3 Commercialism v altruism 15
5.3.1 Payment of the surrogate mother 15 - 17
5.3.2 Agencies 17 - 18
5.4 Conflicting interests of the parties 18
5.4.1 Rights and obligations of the birth mother 18 -20
5.4.2 Rights and obligations of the commissioning 20 - 21
parent or parents
5.4.3 Rights of the husband or partner of the surrogate 21
mother
5.4.4 Rights of the child 21-22
5.5 Surrogacy models 22 -24
5.6 Surrogate motherhood agreement 24 -27
5.7 Screening and counselling 27 - 29
5.8 Offences and penalties 29
5.9 Other problem areas 29
5.9.1 Abnormal child 29
5.9.2 Succession 29
5.9.3 Publication of identities of parties 30
5.9.4 Should children be informed of 30
surrogacy agreements?
5.9.5 Insurance 30
5.9.6 Death and divorce 31
5.9.7 Exploitation 30 - 31
5.9.8 Maintenance 31
5.9.9 Cost factor 32-33
6. Recommendations of the Committee 33
6.1 Introduction 33
6.2 Need for legislation 33 - 34
6.3 Types of surrogacy 34
6.4 Qualifications 35
6.4.1 Surrogate mothers 35
6.4.2 Commissioning parents 36-37
6.5 Commercialism v altruism 37
6.6 Counselling and screening 38 - 39
6.7 Surrogate motherhood agreement 40
6.8 Confirmation of surrogate motherhood 41-42
agreement by court
6.9 The effect of the surrogate motherhood agreement 42 - 44
6.10 Offences and penalties 44
6.11 Other problem areas 44
6.11.1 Abortion and surrogacy 44
6.11.2 Should children be informed 44
of surrogacy agreements?
7. Way forward 45
_________________________________________________________________
The Ad hoc Committee on Surrogate Motherhood (hereinafter referred to as the "Committee"), having considered and examined the subject of its enquiry, and having heard evidence, begs to report as follows:
1. Introduction
1.1 The Committee was established by resolution of the National Assembly on 26 August 1994. During its period of existence the Committee gave full effect to its terms of reference and managed to publish two interim reports dated 6 November 1996 and 18 June 19971, dealing with submissions received in public hearings and study tours held in South Africa and overseas . The progress of the Committee was however marred, not only by the tight Parliamentary schedule, but also by time constraints and by an advisory that more urgent legislation be given priority. The Constitution was still being negotiated and some of the issues (for example, the equality section (section 9), especially with regard to discrimination on the grounds of gender, sex, marital status, sexual orientation and birth), were to have an impact on potential surrogacy legislation. It was, therefore, resolved that the Committee should await the adoption of the Constitution before continuing with its mandate. Furthermore, legislation on abortion (which was only assented to on 12 November 1996), was to have an impact on potential surrogacy legislation and it was, therefore, decided that the report on surrogacy be held in abeyance until legislation on abortion was finalised.
1.2 The terms of reference of the Committee was -
"... to enquire into and report upon the South African Law Commission Report on Surrogate Motherhood, laid upon the Table on 19 April 1993, the Committee to have power to take evidence and call for papers.".2
1.3 The recommendations set out in the Report of the South African Law Commission3 can be summarised as follows:
1.3.1 Surrogacy should not be banned or criminalized in South Africa, but should rather be recognised and regulated by legislation.
1.3.2 Surrogate motherhood should be permitted for married couples only.
1.3.3 The wife have to be incapable of giving birth for medical reasons and her condition have to be permanent and irreversible.
1.3.4 The gametes of both commissioning parents have to be used, but where this is impossible the gametes of at least one of the parents and a donor (which could not be the surrogate mother or her husband) have to be used.
1.3.5 Before the agreement can be executed a written surrogate motherhood agreement have to be confirmed by the Supreme Court (now the High Court).
1.3.6 In order to enable the court to properly consider the application for confirmation of the agreement, conclusive evidence have to be submitted with regard to the physical and psychological suitability of the surrogate mother to act as such; the psychological suitability of the commissioning parents to accept parenthood of the child; the family circumstances of the parties in question; and the interests of any descendant or adopted child of the commissioning parents.
1.3.7 The surrogate mother should be compensated for actual expenses in connection with the confirmation and execution of the agreement only.
1.3.8 The effect of a valid surrogate motherhood agreement would be that any child born as a result of the artificial fertilisation of the surrogate mother in accordance with the agreement would for all purposes be the child of the commissioning parents as if the commissioning wife had given birth to the child. The surrogate mother would have no rights of parenthood, custody or access to the child.
1.4 The Committee's terms of reference was used as a basis for its work. It was however, decided that the Committee should expand on its terms of reference to investigate the report of the South African Law Commission (hereinafter referred to as the "Law Commission"), by conducting additional research of its own for the following reasons:
1.4.1 The Law Commission was inappropriately constituted in terms of gender and race at the time of the investigation.
1.4.2 Some of the recommendations of the Law Commission were not in line with the Constitution.
1.4.3 The consultation process by the Law Commission was inadequate. In written submissions received, some commentators expressed dissatisfaction with the Law Commission's report because the majority of people were not approached to comment on the matter.
2. WORK METHOD
2.1 From the meetings held with the officials from the Department of Justice and the Law
Commission, it emerged that the subject of surrogacy was not only intricate and complex, but foreign to most Committee members. Therefore, the Committee:
2.1.1 Hosted an informative comprehensive workshop with experts on the subject.
2.1.2 Conducted public hearings.
2.1.3 Called for written submissions on the draft Bill contained in Schedule A to the Law Commission’s Report, through advertisements in newspapers and invitations to all relevant stakeholders.
2.1.4 Conducted study tours in four strategic areas, including rural areas. The Committee visited the North West, Northern Province, Eastern Cape and Kwazulu-Natal.
2.1.5 Undertook a study tour abroad to investigate how the matter is being dealt with by other jurisdictions. The Committee visited the United States of America and the United Kingdom.
3. TERMINOLOGY
For purposes of this report the terms used can be defined as follows:
3.1 "Surrogate mother" means any competent woman who bears a child or children for another person or persons (the commissioning parent or parents), as the result of an agreement to this effect entered into prior to the conception of the child or children.
3.2 "Commissioning parent" means a person or persons who enter into a surrogate
motherhood agreement with a surrogate mother.
3.3 "Surrogate motherhood agreement" means an agreement between a surrogate mother and a commissioning parent or parents whereby the surrogate mother undertakes to bear a child or children for the commissioning parent or parents ,with the intention of handing over such a child or children to the commissioning parent or parents ,with the intention that that child or children become their legitimate child or children.
3.4 "Artificial insemination" means the introduction by means other than natural means of a male gamete or gametes into the internal reproductive organs of a female person for the purpose of human reproduction and includes in vitro fertilisation (IVF).
3.5 " In vitro fertilisation - (IVF)" means the placing of the product of a union of a male and female gamete or gametes, which have been brought together outside the human body, in the womb of a female person for the purpose of human reproduction.
3.6 "Full surrogacy" means the in vitro fertilisation of the surrogate mother to the effect that the surrogate mother's gametes are not used. She is only the gestational mother. This will arise where-
3.6.1 the man is fertile; his wife or partner is able to conceive but unable to give birth.4 The gametes of both commissioning parents are to be used;
3.6.2 the man is infertile; his wife or partner is able to conceive but unable to give birth. The gametes of the wife or partner and a male donor are to be used;
3.6.3 the man is fertile; his wife or partner is unable to conceive or to give birth. The gametes of the man and a female donor other than the surrogate mother to be used; or
3.6.4 where both the man and the woman are infertile and foreign donor gametes
are used.
3.7 "Partial surrogacy" means the artificial insemination of the surrogate mother with the gametes of the commissioning husband or partner or donor. The surrogate mother is both the genetic and gestational mother.
3.8 "Informal surrogacy" means the insemination of the surrogate mother with the gametes of the commissioning parent. This is performed privately by the parties according to accepted customary practices without the intervention of medical doctors or clinics. The surrogate mother is both the genetic and the gestational mother.
3.9 "Direct parentage" means that a child or children born as a result of a surrogate
motherhood agreement are considered the legitimate child or children of the commissioning parent or parents immediately at birth.
3.10 "Adoption" is a juristic process through which parental authority over a child is terminated and is vested in the adoptive parents.
3.11 "Fast track adoption or transfer of parentage " means a procedure whereby
the commissioning parent or parents in a surrogate motherhood agreement petition the court for a parental order whereby they will be treated in law as the parent or parents of the child or children without having to adopt the said child or children. Until the making of the order by the court the surrogate mother remains the legal mother of the child or children.
3.12 "Altruistic surrogacy" means a surrogacy arrangement where the surrogate mother is motivated, not by the prospect of financial gain, but by the altruistic desire to assist another person or persons to have a genetically linked child of his or her or their own.
3.13 "Commercial surrogacy" means a surrogacy arrangement where the surrogate mother is motivated by the prospect of financial gain as the surrogacy is undertaken in exchange for payment. The commissioning parent or parents undertake to pay the surrogate mother a fee which is greater than the costs incurred and income lost in conceiving and bearing the child.
4. CURRENT LEGAL POSITION
4.1 There is currently no legislation in South Africa dealing specifically with surrogacy arrangements. There are, nevertheless, legislation which may have far-reaching implications for surrogate motherhood. The definition of "artificial insemination" in section 5(3) of the Children's Status Act, 1987(Act No.82 of 1987), is wide enough to cover most of the procedures utilized to give effect to surrogacy arrangements. Thus, the effect of section 5(1) (a) may be that a child or children born as a result of the artificial insemination of a woman with donor sperm with the consent of her husband, may be deemed for all purposes to be the legitimate child or children of the gestational mother (the surrogate mother) and her husband. The effect of section 5(2) may be that the commissioning parent or parents may be regarded as the donors and as such he, she or they do not have any parental powers over the said child or the children. This situation may have an especially harsh impact on parties in "full" surrogacy where the gametes of a commissioning parent or parents are used and the surrogate mother only acts as host mother.
4.2 If the legal requirements set out in section 5(1) (a) of the Children's Status Act ,1987, are not complied with then the common law will apply and the child, may be considered to be the extra-marital child of the surrogate mother.
4.3 In all the situations mentioned in paragraphs 4.1 and 4.2, the resultant legal status of the child or children is or are entirely contrary to the objective of the parties to the surrogacy agreement, namely that the child or children should for all legal purposes be the child or children of the commissioning parent or parents.
4.4 Under the current South African law, the only way in which the commissioning parent or parents can become the legal parents of the child is by adopting him or her or them. This would be the case even if the surrogate mother and her husband, if she is married, are prepared to give effect to the surrogacy arrangement and hand over the child or children to the commissioning parent or parents. In terms of the Child Care Act, 1983 (Act No. 74 of 1983), the surrogate mother and her husband, if she is married, must consent to the adoption of the child, unless the Children's Court is prepared to dispense with such consent on one of the grounds set out in section 19 of the said Act.
4.5 The commissioning parent or parents could theoretically also apply to the High Court for an order awarding the guardianship of the child or children to him, her or them. The order can be made by the High Court in its capacity as upper guardian of all minors, if it is in the best interests of the child.
4.6 Since the validity of the surrogate motherhood agreement in the South African law has not been clarified yet, it is doubtful whether the parties will be able to use ordinary contractual principles in the event of a breach of the agreement by either the surrogate mother or the commissioning parent or parents.
5. SUMMARY OF RESEARCH RESULTS
5.1 Types of surrogacy
5.1.1 Informal surrogacy
5.1.1.1 From the information gathered during the study tours, it was clear that informal surrogacy is practised in most communities in our country where it is regulated by cultural norms and practices. The overall view was however that surrogacy should be practised within families only.
5.1.1.2 There were no real objections to legalising surrogacy procedures, provided that it did not impact negatively on existing norms and practices. Most people were of the view that the introduction of modern and scientific methods in the practice of surrogacy would be acceptable.
5.1.1.3 A form of "informal surrogacy" can also be found in Britain where it is referred to as "straight surrogacy". It is also performed privately by the parties without the intervention of medical doctors or clinics. The general feeling in Britain about straight surrogacy was however that such practices should either be discouraged or regulated as no counselling or screening (physical or psychological) was done in such cases.
5.1.2 Formal Surrogacy
Two types of formal surrogacy were identified namely, full surrogacy and partial surrogacy.
Full surrogacy is referred to as "gestational surrogacy" in the USA and "IVF surrogacy" in Britain. "Partial Surrogacy" is referred to as "traditional surrogacy" in the USA and in Britain it is referred to as "natural surrogacy".
5.1.2.1 Some commentators argued that legislation should only permit full surrogacy. The reasons advanced for this view were the following:
5.1.2.1.1 With full surrogacy, future conflicts between a surrogate mother and the commissioning parent or parents would be reduced since the surrogate mother would not be genetically related to the child or children. It will therefore minimise the risk of the surrogate mother being unwilling to hand over the child or children after birth. Although the idea that genes rather than gestation is responsible for the bond between mother and baby has been criticised, it has been found worldwide that in practice those cases which ended with unacceptable results were the ones involving partial surrogacy. An example is the Baby M (I and II) cases5 in the United States. The interviews which were conducted with Ms K Cotton, the first surrogate mother in Britain, also confirmed the aforementioned fact.
5.1.2.1.2 Since the surrogate mother is genetically linked to the child or children she will always be a factor to be considered in the commissioning parents’ relationship with the child or children.
5.1.2.2 Other views expressed in this regard is that full surrogacy alone is not always a practical alternative for many infertile couples, as it is a complex and very expensive medical and surgical procedure with a relatively low success rate. Full surrogacy may, furthermore be potentially more exploitative of poorer women than partial surrogacy and at the same time more attractive to wealthier couples who can obtain a child who is genetically their own.
5.1.2.3 In many cases partial surrogacy will be the only practical and financially feasible option open to the commissioning parent or parents. This is the reason why many people enter into clandestine partial surrogacy arrangements, where the surrogate mother contributes her own gametes and the pregnancy can be easily achieved without the need for medical intervention even if the parties rely on artificial insemination.
5.1.2.4 Some commentators are of the view that surrogacy legislation should permit both partial and full surrogacy.
5.1.2.5 There is another type of surrogacy where both the male and the female gametes used in the creation of the embryo were from donor gametes. This would result in a situation similar to adoption as the child or children would not be genetically linked to the commissioning parent or parents. This would obviate the need for surrogacy as the couple could adopt a child. This type of surrogacy was not preferred by most commentators. In both partial and full surrogacy it should however be a pre-condition that the child or children should always be genetically linked to the commissioning parent or parents.
5.2 Qualifications
5.2.1 Qualifications for the surrogate mother
The following views were expressed regarding qualifications for the surrogate mother:
5.2.1.1 The surrogate mother should be a psychologically and physically fit and proper person with moderate social habits.
5.2.1.2 Some commentators are of the view that there should be an age limit for
surrogate mothers. In the USA at the Centre for Surrogate Parenting and Egg-Cell Donation in Los Angeles, the requirement is that the surrogate mother must be aged between 21 and 37. This requirement is applied with flexibility in that the age of the surrogate mother's youngest child is also taken into account.
5.2.1.3 The traditional view in the communities visited in South Africa is that the surrogate mother should be a relative or friend of the commissioning parent or parents. This was for example, a view expressed by the Ferreira-Jorge family of Tzaneen (the first publicised instance of a family in South Africa to have children by surrogacy). The general view was that the surrogate mother should enter the agreement for altruistic reasons and not for commercial advantage irrespective of whether she is a friend or relative.
5.2.1.4 There were submissions to the effect that the surrogate mother must be married or must have been married previously. A contrary view which is based on the principle of non-discrimination, was that this should not be a factor to be taken into consideration. It was argued that there could be no justification for the legal entrenchment of criteria, other than medical ones, which would prevent someone from becoming a surrogate mother. In Britain it was indicated that it would be helpful if the surrogate mother is married as pregnancy as a single parent can be very lonely. In South Africa the Human Tissue Act,1983 ( Act No.65 of 1983), was recently amended to make it legally possible for unmarried women to undergo artificial fertilisation procedures and hence to access donor semen. Prior to these amendments, artificial insemination could legally only be carried out on a married woman with the written consent of her husband.
5.2.1.5 The surrogate mother must have at least one healthy child. The reasons
advanced are that -
5.2.1.5.1 the surrogate mother will be emotionally better equipped to understand the consequences of her entering into a surrogacy arrangement after having had the experience of a pregnancy, and this will enhance the chances of success of the surrogate motherhood agreement;
5.2.1.5.2 having a child of her own will minimise the risk of her wanting to keep the child, because the baby born as a result of the surrogate motherhood agreement will not be her only child ; and
5.2.1.5.3 it will cater for the event that through this pregnancy she might be unable to have other children.
5.2.1.6 Most commentators agreed that the surrogate mother should be financially secure in order to eliminate the possibility that she could use the surrogacy arrangement as a source of income. This is also the case in Britain and the USA.
5.2.2 Qualifications for commissioning parents
The following views were expressed regarding qualifications for the commissioning parents:
5.2.2.1 Most commentators are of the view that surrogacy should be the last option by the commissioning parent or parents for conceiving a child, and the infertility problem necessitating a surrogate pregnancy must be permanent and irreversible. Surrogacy should not be resorted to for cosmetic reasons. Surrogacy in both the USA and Britain is also regarded as treatment of last resort, and proof of infertility should be provided.
5.2.2.2 The commissioning parent or parents should be a fit and proper person or persons in all respects, should be financially secure and be able to provide a healthy family environment. This should be established through the screening process. The question raised regarding the aforementioned view was who will make the determination and how. For example, in some communities living in a shack is a healthy environment whilst that is not the case in other communities. Therefore, based on the principle of non-discrimination there should be no legal entrenchment of criteria, other than medical ones which should prevent people from becoming commissioning parents.
5.2.2.3 There were various comments regarding the age of commissioning parents. Most of the views suggest that there should be an age limit with regard to commissioning parents. Some commentators were of the view that placing age limitations can have constitutional implications because it will be contrary to the equality clause. In the USA the commissioning parent or parents should be under the age of 50 years, emotionally mature and financially secure so that in the event of an early death the baby will be provided for.
5.2.2.4 There are three contending views regarding marriage as a possible requirement for qualifying as commissioning parents. These are:
5.2.2.4.1 Only people in heterosexual relationships should qualify as commissioning parents. This would include marriages concluded under any tradition, or system of religious, personal or family law. It was argued in this regard that although such a requirement may be prima facie unconstitutional (discriminatory with regard to equality in general and sexual orientation), it may be justified in terms of the limitation section in the Constitution as it could be argued that the best interests of the child should be the most important factor and not the interests of the commissioning parents. It was therefore submitted that children are better off in a stable, heterosexual relationship and that it would be wrong to place children in an environment that, by its very nature, prevents children being conceived in the first place.
5.2.2.4.2 Unmarried persons who are involved in homosexual relationships should also qualify as commissioning parents. A refusal to allow persons involved in such relationships to become commissioning parents should be based on established evidence that such persons are less capable parents, and that it will not in the best interests of the child. It will not be possible to argue that the sexual orientation of a person should disqualify him or her from becoming a parent. Disqualification may further be seen as an impairment or limitation of the rights of certain persons to make decisions concerning reproduction and a violation of their rights to dignity and privacy.
5.2.2.4.3 Unmarried, divorced or widowed persons who are not involved in homosexual relationships, should qualify.
At the Centre in the USA visited by the Committee the requirement is set that the commissioning parents should have been married for preferably three to four years. In Britain it was indicated that the commissioning parents have to be married as British legislation requires them to be married in order to effect a change of parentage.
5.2.2.5 In both the US A and Britain the commissioning couple should be willing to co-operate in psychological studies.
5.3. Commercialism vs Altruism
5.3.1 Payment of the surrogate mother
5.3.1.1 Most of the commentators expressed the view that surrogacy should be seen as a way of helping irreversibly infertile people to have children and not as a means of making business. The surrogate mother should therefore enter into the surrogacy agreement for altruistic reasons rather than for financial gain. The main arguments raised in this regard were the following:
5.3.1.1.1 commercial surrogacy should be prohibited because it is degrading to the surrogate mother as she is dehumanised to a mere "incubator".
5.3.1.1.2 pregnancy is cheapened if it is entered into for financial gain as there should be certain things in life that money can't buy.
5.3.1.2 A contrary view was that both commercial and altruistic surrogacy were viable options. The following arguments were raised:
5.3.1.2.1 If the State wishes to avoid discrimination and to treat its citizens equally it should adopt a hands-off approach, carving out an area for its citizens in which they have the right or freedom to act in ways which are neither harmful to others nor unfair to those who join with them in action, and refusing to restrict that freedom in the name of values which some of its citizens reasonably reject. The view is that commercial surrogacy is not harmful to third parties, the surrogate mother and the children conceived as a result of surrogacy arrangements, provided that the State is involved in regulating the fee.
5.3.1.2.2 Surrogacy may be the only way out of a desperate situation for a poor woman. It should therefore be the woman’s decision and not the State’s decision, as to whether the benefits of the transaction outweigh the costs of engaging in alienated or stereotypical feminine labour.
5.3.1.2.3 The vast majority of infertile persons and surrogate mothers are willing to enter into paid arrangements, the visiting of which with invalidity is inconsistent with the concession that the parties and the child conceived as a result of their agreement need protection, which the existing law is unable to supply.
5.3.1.2.4 Another approach was that as the objective behind non-commercialism is to prevent a "rent-a-womb" situation, it shows the double standard applied in the case of surrogacy contracts in that it is not acceptable for women to make money from their services while it is acceptable for doctors and lawyers involved in infertility treatment cases to gain financially.
5.3.1.3 Although commentators could not agree on whether surrogate mothers should be paid for their services most commentators agreed that she should be compensated for reasonable expenses incurred as a result of the surrogacy agreement. Provision should furthermore be made for the loss of income incurred by the surrogate mother, who was in full or part-time employment. Further that medical expenses be included in the computation of expenses.
5.3.1.4 It was furthermore argued that the State should regulate all payments in connection with surrogacy arrangements in order to:
5.3.1.4.1 prevent the commissioning parents from striking an unconscionable bargain; and
5.3.1.4.2 on the other hand, prevent any attempts to extort more than the agreed sum from the commissioning parents.
It was further proposed that contraventions in this regard should be visited with criminal sanctions.
5.3.1.5 In Britain commercial surrogacy is prohibited. This entails that the
surrogate mother is not rewarded for her services. She may, however, be compensated for medical expenses and loss of earnings. The law clearly provides that the surrogate mother is only entitled to reasonable, properly accounted for expenses, and she cannot claim for nebulous expenses. In the USA commercial surrogacy is practised in certain States.
5.3.2 Agencies
5.3.2.1 Most commentators are of the view that agencies or brokers that provide services to the parties involved in surrogacy agreements should be outlawed to prevent any abuse of these arrangements. The argument is that the right to freely engage in economic activity can never override the interest of society to prevent exploitation of the parties, and to protect the interests of the child or children.
5.3.2.2 The nature of agencies that provide services for surrogacy arrangements differ vastly in the USA and Britain. While agencies in the USA are mostly commercial, this is not the case in the Britain, where commercialisation is forbidden. In Britain commercial agencies and brokers are outlawed. Agencies only provide an advisory service for surrogate mothers and commissioning parents. Some of the functions performed by agencies in the USA are performed by staff at the infertility units in Britain i.e counselling and screening of parties.
5.3.2.3 In the USA there is sometimes abuse of surrogacy arrangements because most
agencies are commercial. The main concern is that with the rise of baby brokers in the USA, surrogacy has become more commercialised. The view was expressed that if altruism was the motive for surrogacy, and if professional brokers were prohibited from surrogacy arrangements, surrogacy would be more acceptable to those people who presently oppose it.
5.3.2.4 It was however found that in California, for example, it is very expensive to use the facilities provided by agencies or brokers, because of the high standards employed and the many professionals involved in the process. The advantage of commercial surrogacy if it is practised at this level is that there can be built-in procedures and protection precautions for both the surrogate mother and the commissioning parents. All the agencies do not live up to that standard.
5.3.2.5 Most of the commentators who are against commercialisation of surrogacy are
also of the view that advertising surrogacy should also be prohibited because it could encourage commercial surrogacy agreements.
5.3.2.6 Canada hopes to implement a surrogacy policy in 1998 that will ban commercial surrogacy and essentially reflect policies similar to that in Australia and Britain.
5.3.2.7 In South Africa it was proposed that suitably qualified and equipped infertility units must be formally licenced and registered to perform surrogacy pregnancies. Existing or future IVF units can apply for registration that should be granted after examining the credentials and standing of units. This will ensure constant high standards of medical practice as well as professional people with the necessary experience performing this delicate procedure obviating the need for commercial agencies.
5.4. Conflicting interests of parties
Depending on the technique applied, a child born as a result of a surrogate agreement could have up to five parents : the genetic parents, the surrogate mother and the commissioning parents. It is therefore very important that the rights and obligations of each party to the agreement should be well-defined as parentage, custody and guardianship of the child or children may all become contested issues if a disagreement occurs.
5.4.1 Rights and obligations of the birth mother
5.4.1.1 A very emotive issue surrounding the rights of the birth mother is whether she can be compelled to surrender the child after birth if she doesn't want to do so. Although it can be argued that women who act as surrogate mothers do so of their own free will, it is also true that it is impossible to know how she will react when she has to hand over the child to the commissioning parent or parents.
5.4.1.2 The first question discussed in this regard is whether a distinction should be made between the rights of the birth mother in cases of full surrogacy (where she is genetically unrelated to the child) as opposed to partial surrogacy (where she is genetically linked to the child). Three different views were expressed in this regard:
5.4.1.2.1 Some commentators argued that where the surrogate mother is genetically unrelated to the child, the chance of her wanting to keep the child are considerably reduced. It was therefor argued that it is genes rather than gestation that creates the bond between mother and child. This view was confirmed by Ms K Cotton (the first surrogate mother in Britain) who is genetically linked to her first surrogate child but not to the twins she had afterwards. The Committee's attention was furthermore drawn to the fact that in practice it was predominantly the partial surrogacy cases that presented problems.
5.4.1.2.2 The Committee was however also referred to a study conducted by the American College of Obstetricians and Gynaecologists in which it was found that the attachment of such a mother to the child would be just as great as it would have been if they were genetically linked.
5.4.1.2.3 A third opinion was that bonding of mother and child does not always happen, even in ordinary pregnancies. Bonding of mother and child usually takes place after birth. It was also noted that as a result of the fact that surrogate mothers enter into the agreement for altruistic purposes (mostly with family or friends) very few cases were in fact known where the mother had changed her mind.
5.4.1.3 There were also commentators who argued that specific enforcement of a surrogacy agreement against the surrogate mother would be unconstitutional, violating the surrogate mother's rights to dignity, privacy and bodily autonomy. They referred to the physiological and psychological changes experienced by the surrogate mother during pregnancy, coupled with her exposure to the physical risks of pregnancy as justification for her not to honour the agreement.
5.4.1.4 The following submissions were made regarding abortion and surrogate motherhood:
5.4.1.4.1 The surrogate mother must have the right to decide on an abortion.
5.4.1.4.2 The surrogate mother could possibly be held liable by the commissioning parent or parents for patrimonial loss (contractually) or even for injuria for procuring an abortion. An action for pure economic loss can furthermore not be ruled out.
5.4.1.4.3 If the surrogate mother procures an abortion for no valid reason it will be difficult for commissioning parents to know whether that was justified or not, because doctors are bound by doctor-patient confidentiality clauses.
5.4.1.4.4 In Britain and the USA there are no reported cases of a surrogate mother who procured an abortion.
5.4.1.5 Some of the commentators indicated that the surrogate mother's rights should not be considered in isolation, but should be weighed up with that of the commissioning parent or parents' rights.
5.4.2 Rights and obligations of the commissioning parent or parents
5.4.2.1 It was proposed that the commissioning parent or parents should be entitled to receive the child or children immediately after birth. If the surrogate mother is allowed to keep the child or children despite her undertaking to hand over the child or children to the intended parent or parents, they may suffer distress and hardship as their hope of having a child or children will be frustrated.
5.4.2.2 The contrary view was that the commissioning parent or parents should accept the risk when entering into the agreement that the surrogate mother may change her mind after the birth of the child or children.
5.4.2.3 Commentators in South Africa emphasised the fact that the commissioning parent or parents should at least have rights equal to that of the surrogate mother to the child or children born from a surrogate motherhood agreement. This is also the position in the USA.
5.4.2.4 One suggestion was that if the surrogate mother refuses to part with the child or children, it should be possible for the commissioning parent or parents to apply to court for access to or even custody or guardianship of the child or children , and that any such decision has to be made in the light of the best interests of the child.
5.4.3 Rights of the husband or partner of the surrogate mother
5.4.3.1 Most commentators were of the view that the rights of the partner or husband
of the surrogate mother should also be taken into consideration when legislation is being drafted. It was emphasised that the issue of sexual intercourse between the surrogate mother and her partner or husband during her surrogate pregnancy, should be dealt with by the parties in order to avoid problems which may arise as a result of the paternity of the child or children born from the surrogacy agreement.
5.4.3.2 It was also mentioned that DNA tests are done in Britain after the child’s or children's
birth, because the possibility exists that a surrogate mother might unknowingly be pregnant with her husband's or partner's child or children.
5.4.4 The rights of the child
5.4.4.1 The majority of submissions highlighted the fact that everything within the
surrogacy agreement or arrangement should be done with the best interests of a child or children in mind. This is also the position in the USA and Britain. Furthermore, it was emphasised that the Constitutional provisions, which deals with the rights of children should be adhered to when surrogacy legislation is being considered.
5.4.4.2 Most commentators stressed the fact that the legal status of children should be clearly determined in legislation. Some commentators suggested that the issue of parenthood had to be resolved in advance to secure the status of the child. This proposal was also used as an argument in support of the idea that the surrogate agreement should be a valid document.
5.4.4.3 Legislation must provide that children born from surrogacy arrangements be informed of their origin and the appropriate age at which it must be done should be stated. Another view expressed in this regard is that it would not be in the best interests of the child or children to know the identity of his or her surrogate mother.
5.4.4.4 Most commentators in South Africa are of the view that the issue of visitation rights should be left to the parties to the surrogacy agreement, once again with the best interests of the child at heart and with due regard to the provisions of the Constitution.
5.5 Surrogacy models
5.5.1 Three types of models can be distinguished for use in surrogacy arrangements, namely the adoption model, direct parentage and transfer of parentage or fast track adoption.
5.5.2 The adoption model entails that the commissioning parent or parents would adopt the child or children from the surrogate mother. The surrogate mother retains all rights to the child until after the birth of the child when she decides whether the baby should be adopted by the commissioning parents or not. In South Africa section 20 of the Child Care Act , 1983 (Act No. 74 of 1983), provides, among other things, that-
"(1) An order of adoption shall terminate all the rights and obligations existing between the child and any person who was his parent ... immediately prior to such adoption, and that parent's relatives.
(2) An adopted child shall for all purposes whatever be deemed in law to be the legitimate child of the adoptive parent, as if he was born of that parent during the existence of a lawful marriage.
(3) An order of adoption shall, unless otherwise thereby provided, confer the surname of the adoptive parent on the adopted child."
5.5.3 Direct parentage entails that the commissioning parent or parents become the rightful parent or parents when the baby is born. The child is or the children are regarded as the legitimate child or children of the commissioning parent or parents immediately after birth.
5.5.4 Transfer of parentage or fast track adoption means that the child is registered in the name of the surrogate mother at birth and then the commissioning parents apply for a change in parentage under certain conditions., which entails that the child will be given a new birth certificate, in which the commissioning parents are named as parents of that child.
5.5.5 Although surrogacy legislation and practices in the USA differ from State to State, most States use the so-called adoption model. In California the direct parentage model is used.
5.5.6 In Britain couples may decide to adopt the child under the terms of the Adoption Act,1976 or they may choose the transfer of parentage option which is regulated under section 30 of the Human Fertilisation and Embryology Act, 1990, and the Surrogacy Arrangements Act, 1985.
5.5.7 Section 1A of the Surrogacy Arrangements Act, 1985, states that no surrogacy arrangement is enforceable by or against any of the persons making it. Surrogacy agreements are therefore unenforceable in the courts and the surrogate mother cannot be required by the commissioning parents to hand over her child under any contractual provision nor can the commissioning parents be required to hand over any money or recover any money paid under the terms of the contract.
5.5.8 Section 30 of the Human Fertilisation and Embryology Act , 1990, allows the courts to make an order providing for a child to be treated in law as the child of the couple if certain conditions are met. It is not an adoption per se, but a change in parentage. This system is also referred to as fast-track adoption. This change of parentage has to be done within six months after the birth of the baby, however, there are exceptions to this rule. There is also a requirement that the application for a change of parentage can only be made six weeks after birth. This six-week rule flows from the requirement that the surrogate mother should only make her decision after six weeks. The baby is, however, handed over to the commissioning parents immediately and a guardian ad litem is appointed for the child or children. Section 30 provides, among other things, the following:
"30(1) The court may make an order providing for a child to be in law as the child of the parties to a marriage (referred to in this section as "husband" and "the wife) if-
(a) the child has been carried by a woman other than the wife as the result of the placing in her of an embryo or sperm and eggs or artificial insemination,
(b) the gametes of the husband or wife, or both were used to bring about the creation of the embryo, and
(c) ....
(2) The husband and the wife must apply for the order within six months of the birth of the child, or in the case of the child born before the coming into operation of this Act, within six months of such coming into force.
(3) At the time of the application and the making of the order-
(a) the child's home must be with the husband or the wife, and
(b) the husband or wife, or both of them, must be domiciled in a part of the United Kingdom or in the Channel Islands or Isle of Man.
(4) ...
(5) The court must be satisfied that both the father of the child..., where he is not the husband, and the woman who carried the child have freely, and with full understanding ..., agreed unconditionally to the making of the order...".
5.6 The surrogate motherhood agreement
5.6.1 In so far as the nature and status of the surrogate motherhood agreement are concerned different viewpoints were stated:
5.6.1.1 Some commentators were of the view that all surrogacy agreements should be unenforceable in all instances. The agreement would then be of limited value apart from providing sufficient information to the parties to ensure informed consent.
5.6.1.2 A contrary view was that the agreement should be a valid document which shall be binding on all parties involved. Ordinary contractual principles should govern the agreement, and any disputes which arise from it.
5.6.1.3 A third view was that the agreement must be made an order of court to be enforceable. The court must be empowered to veto the surrogacy agreement if all the requirements for such an agreement as prescribed by law are not complied with and are not in the best interests of the child or children.
5.6.1.4 A fourth view was that the contract should be valid and enforceable but should be used as a starting point only to ascertain the intentions of the parties concerned. Legislation should be implemented to regulate the process further.
5.6.2 Following through on the views expressed above there was also disagreement on the question whether the agreement should provide that the child or children should be handed over to the commissioning parent or parents at birth. The following comments were made in this regard:
5.6.2.1 Since the contract was binding and the child's status had been settled before conception, the contract should provide for the handing over of the child or children to the commissioning parent or parents immediately after birth. This would however entail that the surrogate mother would have no rights to the child or children after it has been born.
5.6.2.2 A contrary view was that the contract should not be enforceable and that the child should only be handed to the commissioning parent or parents if the surrogate mother is still in agreement with the contract after the birth of the child or children. This would entail that the commissioning parents would be in a precarious position until a final decision is taken and the child's future would be uncertain until it is born.
5.6.2.3 A third view was that even where the agreement is valid and enforceable it could make provision for the so-called transfer of parentage option which would provide that the child or children would be handed to the commissioning parent or parents after birth, but that the parentage of the child would only be determined during a period of between six weeks and six months after the birth. This would therefore entail that the child's future and the commissioning parent or parents position could be uncertain for a period up to six months after its birth. It was also proposed that the agreement should state that the child stay with the surrogate mother if she gives an indication that she will not be honouring the agreement until a final decision has been made in order to prevent the child being sent to and fro between the surrogate mother and the commissioning parent or parents.
5.6.3 Commentators however agreed that there must be a prescribed format for the contract and the parties must comply with set requirements. The agreement should be in simple and understandable language. The agreement should provide for or state the following:
5.6.3.1 The reason for the infertility. Evidence to the effect that the infertility is irreversible should be presented.
5.6.3.2 The stability of the commissioning and surrogate parents’ marriage.
5.6.3.3 The surrogate mother’s suitability to be a surrogate mother.
5.6.3.4 That doctors at in vitro fertilisation units indicated, among other things, that the commissioning mother is unable to carry a child or children and whether the parties are suitable for a surrogacy arrangement.
5.6.3.5 Insurance policy on the life of a surrogate mother.
5.6.3.6 Custody of the child or children.
5.6.3.7 Provision to be made for instances where the commissioning couple get divorced or one or both die before the completion of the contract or birth of a child or children.
5.6.3.8 The creation of a trust fund for a child or children.
5.6.3.9 An agreement by the commissioning parent or parents that they will accept the child or children despite any mental or physical handicap.
5.6.3.10 Visitation rights, if any, for the surrogate mother.
5.6.4 Other views expressed regarding the surrogate motherhood agreement were the following:
5.6.4.1 Legislation should specifically provide that the surrogacy agreement will be governed by the law of South Africa. Some respondents expressed the opinion that the surrogate mother and her spouse need not be domiciled in South Africa and that the courts should in bona fide cases of people not residing in South Africa be empowered to grant permission for a surrogacy pregnancy to be performed in South Africa.
5.6.4.2 The agreement should only be drawn up after an obligatory screening process of all the parties involved.
5.6.4.3 Consent by all the parties concerned is essential. The permission of a
surrogate’s husband or partner in a relationship is needed before the surrogate agreement can be entered into.
5.6.4.4 Where the surrogacy is a "full surrogacy", but the agreement is invalid, the
commissioning parents should be allowed to adopt the child or children.
5.6.4.5 Provision may be made for the termination of the surrogacy agreement in the
event of a miscarriage.
5.6.4.6 An advisory body should assist the court during the confirmation of the
surrogate motherhood agreement. Another view was that having the family advocate’s office screen the contract will make the process less cumbersome and less costly than court proceedings.
5.6.4.7 The agreement should make provision for the situation where the surrogate mother should decide on an abortion.
5.7 Screening and counselling
The following views were expressed regarding screening and counselling of the parties to the surrogate motherhood agreement:
5.7.1 A body should be established to advise the courts on the practice of surrogacy. Such a body should be set up by the State to regulate the counselling and mediation services and screening processes, and to facilitate the preparation of evidence needed for confirmation of the contract by the court.
5.7.2 A proper screening for physical and psychological suitability of all parties involved should take place to determine whether they are fit and proper persons to enter into a surrogacy agreement. The result of these reports should be presented to the court and should also be made available to each party.
5.7.3 Assessment should be done with regard to -
(a) reasons for surrogacy;
(b) the state of the mind;
(c) suitability; and
(d) risks.
5.7.4 Counselling should be provided throughout the surrogacy programme and after the birth of the child or children.
5.7.5 It was stressed that it should be compulsory for all parties to undergo an HIV test. It was felt that because of the latent period involved in the development of the AIDS virus, a person has to be tested over a period of 12 months to ensure that he or she is HIV negative.
5.7.6 In both the USA and Britain the importance of the screening and counselling of parties to the surrogacy arrangement were stressed. It was of especial importance to ensure that parties to the surrogacy arrangement is a perfect match. Consultants including social workers, psychiatrists, psychologists, doctors, nurses, ministers of religion and lawyers are used to provide counselling and do screening.
5.7.7 In Britain the screening and counselling are done by the hospital’s ethics committees consisting mostly of approximately 20 people (Ministers of religion, members of staff, psychiatrists and psychologists). Documents to be handed in to these committees include psychological reports from every person involved, a social work report on the surrogate mother and a letter from the legal representative of each party.
5.8 Offences and penalties
Views expressed regarding offences and penalties are the following:
5.8.1 Offences in respect of illegal practices in this area should be created.
5.8.2 Penalties to discourage illegal surrogacy should be extended to cover all
parties.
5.9 Other problem areas
5.9.1 Abnormal child
Submissions made in South Africa and overseas emphasised the fact that provision should be made in the event of the child being born abnormal as no person can be guaranteed a healthy child. It was emphasised that there should be an agreement by the commissioning parent or parents that they will accept the child or children despite any mental or physical handicap.
5.9.2 The law of succession
5.9.2.1 Most of the commentators in South Africa were of the view that the law of
succession should be considered carefully in order to ensure that none of the parties to the surrogacy agreement is prejudiced by the agreement.
5.9.2.2 In Britain it was emphasised that note should be taken of the law of succession
when deciding on a surrogate model, because it could be a problem if direct parentage is not the option chosen. Further that the surrogate mother's children should also be considered.
5.9.3 Publication of identity of parties
The following views were expressed regarding the publication of the identity of the parties:
5.9.3.1 The practice of surrogacy should not be encouraged. Therefore, strict confidentiality must be maintained.
5.9.3.2 Sensational publicity must be discouraged at all costs to protect the dignity of the child or children.
5.9.4 Should the child be informed of the surrogacy arrangement?
5.9.4.1 Some commentators are of the view that it would not be in the best interests of the child or children to know the identity of the surrogate mother.
5.9.4.2 In both the USA and Britain contact by the parties involved in the surrogacy
arrangement is left to choice, but encouraged on a social basis so that the parties can interact with each other and develop a relationship. Ideas on anonymity have changed. Mutual support between the parties involved is now regarded as beneficial, because the surrogate mother should develop trust in the commissioning parents to enable her to hand over the child or children.
5.9.5 Insurance
5.9.5.1 In the submissions made in South Africa it was emphasised that the surrogate mother should be insured to cover any eventualities that may lead to death or disability brought about by the pregnancy. The commissioning parent or parents should also be insured accordingly.
5.9.5.2 In Britain the view was expressed that a surrogate mother’s children should be covered by insurance in the unlikely event of her death as a result of the pregnancy.
5.9.6 Death and divorce
Submissions made indicated that adequate provision should be made in the surrogacy agreement for the custody, care, upbringing and general welfare of the child or children that are to be born in the event of the death of the commissioning parents or one of them, or their divorce before the birth of the child or children.
5.9.7 Exploitation
The following views were expressed regarding the issue of exploitation of the surrogate mother:
5 .9.7.1 The possibility that a surrogate mother may be exploited, especially if she is from a less privileged background than the commissioning parents, should be considered.
5.9.7.2 The drugs prescribed during pregnancy cause severe side-effects and the danger of the situation is not fully explained to surrogate mothers.
5.9.7.3 Most surrogate mothers do not have access to lawyers because of their poor economic situations, and this may result in exploitation, especially in cases where the surrogate mother is illiterate.
5.9.7.4 In Britain it emerged that although it was thought that career women might exploit the situation of surrogate mothers, this has proven not to be the case.
5.9.8 Maintenance
5.9.8.1 Respondents emphasised that the law relating to maintenance of spouses and
children should apply equally to the surrogacy children and their lawful parents.
5.9.8.2 The Californian case of In re marriage Buzzanca6 , which involved the maintenance of a surrogate child in divorce proceedings should be noted. In the case in question the child was born to a surrogate mother using a sperm of an anonymous donor. A month before the baby was born, the commissioning father filed for divorce. He argued that he should not pay maintenance because his wife had not adopted the child and was not the child's natural mother. A lower court agreed, ruling that the child did not have legal parents. The Appeal Court returned the case with an order to declare the commissioning parents as the legal parents of the child and to arrange support from the commissioning father. The court stated in its judgment that there is no legal difference between the parents who agree with a third party to carry a child and parents who have their children in the usual way.
5.9.9 Cost factor
5.9.9.1 The first point made was that in so far as costs are concerned, a clear distinction should be drawn between instances where the in vitro fertilisation or artificial insemination is performed in approved institutions and instances where the matter is handled privately by the parties involved. In the former the process is very costly.
5.9.9.2 In the USA it was indicated that surrogacy is usually practised by the rich, because poor people cannot afford it. Further that treatment in clinics is out of the reach of many people.
5.9.9.3 In Britain surrogacy was initially regarded as an elective procedure and health professionals from the National Health Service was not involved at all. However, after the passing of legislation, they have now become involved in the following ways:
5.9.9.3.1 The surrogate mother is treated like any other pregnant woman.
5.9.9.3.2 Information and guidance are provided to people practising self- insemination.
5.9.9.3.4 Counselling on legal and ethical issues is provided.
Furthermore, there are non-profit agencies that facilitate match-making. The National Health Service also pays for a limited number of in vitro fertilisation procedures for those who cannot afford it.
5.9.9.4 In South Africa most of the commentators were of the view that there should be state-funded fertility clinics because in vitro fertilisation is expensive. Consideration must be given to assistance by the State to infertile women who cannot afford to enter into surrogacy arrangements. Furthermore, the cost factor in South Africa regarding surrogacy should be seen in the light of the Constitution, which provides that everyone has a right to have access to health care services, including reproductive health care.
6. RECOMMENDATIONS OF THE COMMITTEE
6.1 Introduction
6.1.1 After consideration of the Law Commission’s Report on Surrogate Motherhood, the Committee
decided not to adopt the Report in its present form because of the reasons stated in paragraph 1.4 above.
6.1.2 The Committee however accepts both the principles that the majority of people are in favour of surrogacy and that surrogacy could provide a legitimate alternative for irreversibly infertile persons who wish to have children.
6.1.3 Though the Committee did not interpret its terms of reference to include an in-depth
investigation into the merits and desirability of surrogacy, the information gathered during the national study tours undertaken by the Committee and submissions received from the majority of people who were approached for comment supported the idea that surrogacy was a deep-rooted practice applied both formally and informally throughout South Africa.
6.2 Need for legislation
6.2.1 Since existing legislation in respect of the status of children, registration of births and artificial fertilization was not promulgated with the view to surrogate motherhood, and could therefore be regarded as inadequate for the regulation thereof, the Committee is of the opinion that legislation is required to regulate surrogate motherhood. This would avoid any present and future legal uncertainties.
6.2.2 The Committee furthermore agrees with the report of the South African Law Commission that the general principles of the law of contract may be insufficient to exclusively regulate the rights and duties of the parties concerned. Although an agreement between the parties is essential to surrogate motherhood it should merely be the point of departure, after which the entire procedure, the rights and duties of the parties and the legal consequences should be determined by legislation. The matter should be regulated in such a way that it minimises the risks inherent to surrogate motherhood and ensures the best interests of all concerned, with the interests of the child as the overriding factor.
6.3 Types of surrogacy
6.3.1 The Committee recommends that legislation should permit both "full" surrogacy and "partial" surrogacy. However, surrogacy should in all instances be the last option available to a commissioning parent or parents to have a genetically linked child or children. The commissioning parent or parents must, owing to biological or medical factors be unable to give birth to a child and this condition must be permanent and irreversible. The gametes of both commissioning parents or where this is not possible of at least one of the commissioning parents have to be used. The same condition has to be met by the single commissioning parent viz that he or she should be genetically related to the child.
6.3.2 The Committee regards "full" surrogacy as the preferred option and "partial "surrogacy should therefore only be available where it is not possible, for biological or medical reasons, to use the female gamete of the commissioning parent for the purpose of artificial insemination.
6.3.3 Legislation should not make provision for "informal " surrogacy since it is performed privately (and quite often in secret) without the intervention of medical doctors or clinics and is regulated by customary law. The Committee would however encourage people currently engaging in informal surrogacy to make use of the processes set out in the proposed legislation, if they so wish. This will be in the best interest of the child and will ensure better protection to all parties involved.
6.4 Qualifications
6.4.1 Surrogate mother
The Committee recommends that a surrogate mother should meet the following requirements:
6.4.1.1 She should in all respects be a suitable person to act as a surrogate mother. Her suitability should be determined through the screening process.
6.4.1.2 A surrogate mother must be competent to enter into the agreement as provided for in legislation. She must understand and accept the legal consequences of the agreement and the applicable legislation and her rights and obligations thereunder.
6.4.1.3 Any competent woman should be allowed to act as surrogate mother regardless of her marital status or sexual orientation.
6.4.1.4 A potential surrogate mother should have a child or children of her own.
6.4.1.5 A surrogate mother should be a South African citizen, and must be domiciled in the Republic at the time of the conclusion of the contract.
6.4.1.6 She must be financially secure in the sense that she should not be using surrogacy as a source of income.
6.4.1.7 A surrogate mother's motivation for entering into the surrogate motherhood agreement should be altruistic and not commercial.
6.4.1.8 A surrogate mother involved in a relationship, should obtain her partner’s written consent and such partner should be a party to the agreement. The court may, however confirm the agreement if the partner unreasonably withholds his consent. The National Party is of the view that the husband’s or partner’s consent should be a prerequisite for a valid surrogate motherhood agreement. In cases where the consent has not been obtained the agreement should be invalid.
6.4.2 Commissioning parents
The following requirements should be met by the commissioning parent or parents:
6.4.2.1 Surrogacy should only be exercised as a remedy of last resort because of all the risk factors which are inherent in surrogate motherhood. The Committee concurs with the South African Law Commission’s recommendation that a surrogacy agreement should not be permitted unless it is proved that owing to biological or medical factors the commissioning parent or parents are unable to give birth to a child and that condition must be permanent and irreversible.
6.4.2.2 The commissioning parent or parents should be genetically related to the child.
6.4.2.3 The commissioning parents must be competent to enter into the agreement
as provided for in legislation, and must in all respects be suitable to accept parenthood, as determined through the compulsory screening process.
6.4.2.4 The Committee does not agree with the Law Commission’s view that surrogate motherhood should only be available to a legally married husband and wife. The Committee recommends that surrogacy should be available to any competent person or persons irrespective of the marital status or sexual orientation of such a person or persons. The Committee however emphasised that legislation should in all respects protect the best interests of children, especially with regard to providing a child or children born within surrogacy agreements with stable homes. The question whether a commissioning parent or parents will be able to provide a stable home for a child is one of the factors to be decided through the compulsory screening process. The marital status or sexual orientation of the commissioning parent or parents should however not disqualify such a person or persons from becoming a parent or parents. The National Party is of the view that surrogacy not be made available to a homosexual persons, whether single or a partner in a relationship.
6.4.2.5 A person intending to enter into a surrogacy agreement should obtain his or her partner’s written consent and such a husband or partner should be a party to such an agreement. The court may however confirm the agreement if the the partner unreasonably withholds his consent. The National Party is of the view that the husband’s or partner’s consent should be a prerequisite for a valid surrogate motherhood agreement. In cases where the consent has not been obtained the agreement should be declared null and void.
6.4.2.6 The commissioning parents must be South African citizens, and must be domiciled in the Republic at the time of the conclusion of the contract.
6.4.2.7 The commissioning parents must understand and accept the legal
consequences of the agreement and the legislation and their rights and obligations thereunder.
6.4.2.8 It should not be a prerequisite that a married couple should have other
children born from their marriage before entering into a surrogacy agreement.
6.5 Commercialism v altruism
6.5.1 The Committee concurs with the Law Commission’s recommendation that surrogate motherhood for financial gain should not be permitted. To prohibit the commercialisation of surrogacy, it is recommended that legislation should provide that no person shall in connection with a surrogate motherhood agreement give or promise to give any person, or shall receive from any person, a reward or compensation in cash or in kind. This will also apply to agents or brokers. It is recommended that the following be the exceptions:
6.5.1.1 Medical, legal and other necessary expenses related to the surrogacy, for example, the birth of the child or children. This should include all necessary expenses incurred for post-natal care.
6.5.1.2 Loss of earnings.
6.5.1.3 Insurance to cover the surrogate mother for anything that may lead to
death or disability brought about by the pregnancy.
6.6 Counselling and Screening
The Committee made the following recommendations on screening and counselling of the parties:
6.6.1 The Committee concurs with the Law Commission’s recommendation that all parties to a surrogacy agreement should be subjected to a strict screening process before the agreement is implemented and a continuous process of counselling before and after the conclusion and implementation of the surrogate agreement. The Committee, after considering experiences of jurisdictions that do not prohibit surrogacy, resolved that it is evident that the majority of the problems emanating from surrogacy agreements were brought about by the insufficient screening of the parties. The Committee, therefore, recommends that there should be screening of all parties to the surrogacy agreement six months prior to the conclusion of the agreement as it is of cardinal importance that the parties’ social and psychological backgrounds are compatible and to determine their suitability for a surrogacy arrangement.
6.6.2 There should be compulsory HIV testing of all the parties involved in the surrogacy arrangement for a period of 12 months before artificial insemination or in vitro fertilisation is attempted.
6.6.3 Screening of the parties should be done by a State body or private bodies approved by legislation. Members of such a body should include inter alia, a social worker, psychologist, psychiatrist, a lawyer, and a minister of religion.
6.6.4 It should be compulsory that the screening body prepare a report on the fitness and suitability of the parties to the surrogacy arrangement. This report should be submitted to court in support of an application for confirmation of the agreement.
6.6.5 In respect of the surrogate mother the following evidence should be contained in the report
submitted to the court:
6.6.5.1 the physical and psychological suitability of the surrogate mother to act as such;
6.6.5.2 the motivation of the surrogate mother in entering into the agreement;
6.6.5.3 the fact that the surrogate mother is financially secure and is not using the surrogacy arrangement as a source of income;
6.6.5.4 the family circumstances of the surrogate mother;
6.6.5.5 the interests of any descendant or adopted child of the
surrogate mother; and
6.6.5.6 any other facts which the court considers necessary.
6.6.6 In respect of the commissioning parents the following evidence should be contained in the
report submitted to the court:
6.6.6.1 the incapacity of the commissioning parents to give birth to a living child or children and the permanency and irreversibility of that incapacity;
6.6.6.2 the physical and psychological suitability of the commissioning parents to accept parenthood of the child;
6.6.6.3 the family circumstances of the commissioning parents;
6.6.6.4 the interests of any descendant or adopted child of the commissioning parents; and
6.6.6.5 any other facts which the court considers necessary.
6.6.7 Counselling should be provided to all the parties involved before and after the conclusion of the surrogacy agreement and throughout the whole process. A panel of experts should be appointed by the abovementioned body to handle the counselling of parties intending to enter into a surrogacy agreement. The focus should however always be on the best interests of the child or children.
6.7 Surrogate motherhood agreement
6.7.1 The Committee recommends that it should be compulsory for parties wishing to become part of a surrogacy arrangement to enter into a written agreement. This is important to establish the intention of the parties as to parental rights and their willingness to proceed with this intention.
6.7.2 The Committee recommends that the agreement should be regarded as valid and enforceable subject to its confirmation by the court.
6.7.3 The agreement should comply with the following requirements:
6.7.3.1 It should be in writing and signed by all the parties thereto.
6.7.3.2 The agreement should be entered into in the Republic of South Africa.
6.7.3.3 The commissioning parent or parents, the surrogate mother and her partner or
husband, if any, should at the time the contract is entered into be domiciled in
South Africa.
6.7.3.4 The agreement should be confirmed by a court having jurisdiction. The parties should also agree upon the court that has to exercise jurisdiction on their matter.
6.7.4 The agreement should contain the following provisions:
6.7.4.1 The agreement should identify the nature of the surrogacy involved ie full or partial surrogacy and provide all parties with the current status of the law in each instance.
6.7.4.2 That the surrogate mother and commissioning parents understand and agree to the terms of the contract and the legal position pertaining to their particular surrogacy agreement.
6.7.4.3 It should establish specific responsibilities for each party so as to minimise
misunderstanding later on
6.7.4.4 Financial responsibility of the parties should be established regarding expenses related to the pregnancy, requiring funds to be placed in a trust account to cover all anticipated expenses.
6.7.4.5 Commissioning parents should state that they will accept parental responsibility for the child despite any medical or physical handicaps the child may have.
6.7.4.6 The agreement must deal with the health and insurance policies to be
maintained by all parties throughout the agreement.
6.7.4.7 The agreement must deal with all the eventualities which could lead to the surrogate mother or the commissioning parents requesting an abortion. The agreement may state that the surrogate mother may, where she decides to terminate the pregnancy for non-therapeutic reasons, be responsible for repaying and reimbursing all the necessary expenses incurred by the commissioning parents in respect of her pregnancy.
6.7.4.8 The agreement should specify any arrangements regarding the child or children, for example, visitation rights, access to the child or children. etc. It should also stipulate arrangements to be made regarding custody of the child or children in the case of divorce or death of one or both of the commissioning parents.
6.7.4.9 The parties to a surrogate motherhood agreement should jointly decide whether or not to publicise their surrogacy arrangement. They should take into account the fact that the child or children could unwittingly be publicly identified. However, the Committee is of the view that even if the parties have agreed to reveal their arrangement, they should not reveal the identity of the child or children.
6.7.4.10 Provide that social disease testing (including HIV) be performed on all parties. Provide that the surrogate mother be medically examined and declared suitable.
6.7.5 The contract should be in a standard form, but may include optional clauses to provide for matters not regulated by legislation as long as such clauses are not contrary to good morals or against the public interest.
6.8 Confirmation of surrogate motherhood agreement by court
6.8.1 The Committee concurs with the Law Commission’s recommendations that any surrogacy agreement should be confirmed by a court before parties to the agreement can proceed with the surrogate motherhood procedure.
6.8.2 Before a court may confirm the surrogate agreement placed before it, it has to be satisfied that the commissioning parents and surrogate mother have met all the requirements provided for in the proposed legislation referred to in paragraph 6.4 above.
6.8.3 In order to enable the court to properly consider the application for confirmation conclusive evidence to this effect should be submitted to the court. The agreement should therefore be supported by a full report compiled by the statutory body responsible for the screening and counselling of the parties.
6.8.4 The court may confirm the agreement if it is satisfied that the agreement includes adequate provisions for the custody, care, upbringing and general welfare of the child or children that are to be born in the event of the death of the commissioning parents or one of them, or their divorce before the birth of the child or children.
6.8.5 The court may confirm the agreement if, in general, having regard to the personal circumstances and family situations of all the parties concerned, but above all the interests of the child or children that are to be born, there is no impediment to such confirmation.
6.8.6 Once the court has confirmed the agreement, it should be a valid and enforceable document. In this way the parties are legally bound by the agreement and the interests of the child is protected.
6.9 The effect of a surrogate motherhood agreement
6.9.1 Full surrogacy
The following recommendations are being made in respect of the effect of the surrogate motherhood agreement in instances of full surrogacy:
6.9.1.1 Any child or children born from a surrogate motherhood arrangement should be regarded as the legitimate child or children of the commissioning parent or parents immediately after birth and the birth of the child or children must be registered accordingly. This is referred to as "direct parentage".
6.9.1.2 The surrogate mother is obliged to hand over the child to the commissioning parent or parents immediately after birth.
6.9.1.3 Neither the surrogate mother nor any of her relatives will have any rights of guardianship, custody of or access to the child or children. However, the parties to the agreement may enter into an agreement regarding visitation rights and access to the child or children.
6.9.1.4 The child born through "full surrogacy" shall not, on account of the surrogacy, have any claim of maintenance or of succession against the surrogate mother, or any of her relatives.
6.9.1.5 Subject to the conditions regarding abortion, no surrogate motherhood agreement may be terminated after the artificial insemination of the surrogate mother has taken place.
6.9.1.6 Any surrogate motherhood agreement that does not comply with the provisions regarding full surrogacy as set out in legislation, shall be invalid and any child born as a result of any action taken in execution of such an agreement, shall subject to the provisions of section 5 of the Children Status Act, 1987 (Act No. 82 of 1987), for all purposes be deemed to be the child or children of the woman that gave birth to that child or children.
6.9.2 Partial surrogacy
The following recommendations are being made in respect of the effect of the surrogate motherhood agreement in instances of partial surrogacy:
6.9.2.1 The child or children is regarded as the child or children of the surrogate mother and is registered as such. If she is married her husband is regarded as the legal father.
6.9.2.2 A guardian ad litem has to be appointed to protect the interests of the child or
children born through partial surrogacy.
6.9.2.3 The surrogate mother is obliged to hand over the child to the commissioning parent or parents immediately after birth.
6.9.2.4 After six weeks but within six months of the birth of the baby the commissioning parent or parents may apply for a change of parentage or so-called fast track adoption. This would entail that the baby will be given a new birth certificate in which the commissioning parent or parents are named as a parent or parents of the child or children. The six week-rule flows from the requirement that the surrogate mother should only make a final decision to give up her rights towards the baby after six weeks.
6.9.2.5 The consent of the surrogate mother should be unconditional. Consent is ineffectual if given less than 6 weeks after the birth of the child or children. Should the surrogate mother not give her unconditional consent to a transfer of parentage, the status quo will remain.
6.9.2.6 After the change of parentage has been effected the surrogate mother shall have no rights of parenthood or custody of the child or children. However, the parties to the agreement may enter into an agreement regarding visitation rights and access to the child or children etc.
6.9.2.7 After the transfer of parentage has been effected, the child born through "partial surrogacy" shall not, on account of the surrogacy, have any claim of maintenance or of succession against the surrogate mother, or any of her relatives.
6.10 Offences and penalties
The Committee recommends that-
6.10.1 it should be an offence for any person to artificially fertilise a woman in the execution of a surrogacy agreement or render assistance in that regard, unless it has been authorised by the court;
6.10.2 except as provided in legislation no person should, in connection with a
surrogate motherhood agreement, give or promise to give any person, or shall receive from any person, a reward or payment in cash or in kind;
6.10.3 advertising that any person is willing to enter into a surrogate motherhood
agreement should be made a punishable offence;
6.10.4 any person who publishes the identity of the parties to a surrogacy agreement without their
consent should be guilty of an offence; and
6.10.5 legislation should provide for penalty provisions for the contravention of surrogacy legislation.
6.11 Other problem areas
6.11.1 Abortion and surrogacy
The Committee is of the view that the issue of an abortion within a surrogacy arrangement is complex and should be handled by the parties in their terms of contract. This should be done within the confines of the Constitution and the Termination of Pregnancy Act, 1996 (Act No. 92 of 1996).
6.11.2 Should children be informed of surrogacy agreements?
The Committee recommends that if a child is under the age of ten years old, parents should have the discretion as to whether or not to inform the child or children that he, she or they were born from a surrogacy arrangement. However, children over the age of 10 years should in all cases be informed about their genetic background. In all instances emphasis should be placed on what will be in the best interests of the child or children.
7. THE WAY FORWARD
7.1 The Committee calls upon the South African Law Commission to include in its investigation on the Harmonisation of Common Law and Customary Law, the impact which the surrogacy legislation will have on customary traditions, cultures and practices.
7.2. The following legislation and their regulations, if any, which impacts on surrogacy should, if necessary, be reviewed to bring it into line with the Committee's recommendations:
7.2.1 Human Tissue Act, 1983 (Act No. 65 of 1983).
7.2.2 Child Care Act , 1983 (Act No.74 of 1983).
7.2.3 Children Status Act, 1987 (Act No. 82 of 1987).
7.2.4 Births and Deaths Registration Act, 1982 (Act No. 51 of 1992).
7.2.5 Choice on Termination of Pregnancy Act, 1996 (Act No. 92 of 1996).
The Committee therefore calls on the Department of Welfare and Population Development, and any other State Department which has legislation that impacts on surrogacy, to review such legislation and to address any conflicts with surrogacy legislation, if any.
7.3 Research is necessary in order to determine whether regulation of new reproductive technologies is feasible or necessary. The rapid changes to new reproductive technologies such as -
7.3.1 ICSI (Intracytoplasmic Sperm Injection), promoted as the long-awaited cure to male infertility. Given that sperm is injected into an ovum the long-term effects, if any, will only be visible as the child or children move from the developmental stage to adulthood;
7.3.2 germ-line genetic alteration - manipulating the genetic material in the egg, sperm or embryo. This may be passed on to the next generation;
7.3.3 sex-selection for non-medical reasons - raises the fear that female foetuses will be aborted in cultures where male children are preferred; and
7.3.4 cloning
make it imperative that government be made aware that even while society has not had the opportunity to grapple with the moral and ethical implications of these NRT's (New Reproductive Technologies), some of them are presently being used and the question that needs to be addressed is whether these should be regulated or not.
ANNEXURE A
The following persons, organisations and institutions made submissions:
* Ms P Constance, South African Parliamentary Research Unit
* Law Society of the Cape of Good Hope
* The Women's Lobby
* National Council for Women of South Africa
* South African Council for Social Work
* Die Voortrekkers
* Chief Director: Groote Schuur Hospital
* Women's National Coalition
* South African National Council for Child and Family Welfare
* SA Federation for Mental Health
* South African Medical and Dental Council
* Federal Council for Women
* Lawyers for Human Rights
* Afrikaanse Christelike Vrouevereniging Hoofbestuur
* The Society of Psychiatrists of South Africa
* SAGD Hoofkwartier
* Dr Amanda Gouws
* Prof AA van Niekerk: Centre for Applied Ethics, University of Stellenbosch
* Federation of Women's Institutes
* C Felton Attorneys
* The Medical Association of South Africa
* Prof D Meyerson: University of Cape Town
* Johannesburg Child Welfare Society
* Mrs K Henn
* Dr D Pretorius: University of South Africa
* Mr and Mrs Anthony of Tzaneen
* Professor Belinda van Heerden
ANNEXURE B
List of persons and institutions consulted in the USA and Britain
* Mr R Gilbert, Los Angeles, California
* Ms K Senesiou, Centre for Surrogate Parenting and Egg Donation, Los Angeles
* Prof M Field,(Professor of Law and expert on constitutional matters) Harvard Law School, Cambridge , Massachusetts
* Ms K Cotton,COTTS, North London (First surrogate mother in Britain to go public and director of COTTS)
* Dr J Parsons, King College Hospital,London (Head of the Assisted Conception Unit at the Hospital)
* Dr P Brinsden, Bournehall Clinic, Cambridge (Head of the Clinic)
* (initial) Dr Atherton, Bournehall Clinic, Cambridge (Counsellor at Clinic)
* Mr N Dean, Mr M Evans, Ms M Fry, Ms C Osborne, Dr E Gadd, Mr Poiser (initial ) - Officials of the Department of Health: Health Promotion Division
* Ms J Woodside, Human Fertilisation and Embryology Authority, London
* Ms V English, British Medical Association, London