CHILDREN'S BILL: SURROGATE MOTHERHOOD
NCOP Workshop
30 August 2005

SOUTH AFRICA LAW COMMISSION REPORT:
SURROGATE MOTHERHOOD
- 1993: SA Law Reform Commission completed Project 65: Surrogate Motherhood
- 19 April 1993: South African Law Commission Report on Surrogate Motherhood tabled in National Assembly on 19 April 1993

AD HOC COMMITTEE ON REPORT OF THE
SALRC ON SURROGATE MOTHERHOOD
- Ad hoc Committee on report of the South African Law Reform Commission Report on Surrogate Motherhood: established by resolution of the National Assembly on 26 August 1994
- Committee's terms of reference: 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.

REASONS FOR ADDITIONAL RESEARCH
- SALC inappropriately constituted in terms of gender and race
- Some SALR recommendations not in line with Constitution, 1996
- SALR consultation process inadequate -majority of people not approached for comment

COMMITTEE'S WORK METHOD
- Hosted an informative comprehensive workshop with experts
- Conducted public hearings
- Called for written submissions on SALC's proposed draft Bill
- Conducted study tours in 4 strategic areas, including rural areas - North West, Northern -Province, Eastern Cape, KwaZulu-Natal
- Undertook study tours abroad - visited the USA and United Kingdom

RESEARCH RESULTS
- Informal surrogacy is practiced in most communities - regulated by cultural norms and practices
- Overall view on informal surrogacy:should be practiced within families only
- There are no real objections to surrogacy, provided it does not impact negatively on existing norms and practices
- View held by majority: introduction of modern and scientific methods would be acceptable "informal surrogacy" was found in the United Kingdom where it was practised privately without intervention of medical doctors or clinics - referred to as "straight surrogacy" in UK
- General feeling about "straight surrogacy in UK: should be discouraged or regulated
= no counselling or screening done

- Two types of surrogacy found:
= Full surrogacy: birth mother is not genetic mother - both gametes from donors
= Partial surrogacy: birth mother is genetic mother - her gamete and donor gamete
- Partial surrogacy agreements often entered into to avoid medical intervention, even when artificial insemination is used
- It was felt that there should be a genetic line between child and commissioning parents

- Surrogate mother should be psychologically and physically fit and proper person with moderate social habits
- Traditional view: surrogate mother should be a relative or friend of commissioning parents
- Surrogate mother should do it for altruistic -~ reasons, not commercial reasons
- Surrogate mother should have at least one healthy child of her own
- Surrogacy should not be used as a source of income

- Surrogate mother may be compensated for reasonable expenses and loss of income
- Surrogacy should be the last option by commissioning parents for conceiving a child - infertility problem necessitating surrogacy should be permanent and irreversible
- Commissioning parents should be fit and proper persons
- Payments in connection with surrogacy should be regulated

- Agencies or brokers for surrogate motherhood agreements should be outlawed
- The rights and obligations of all parties should be clearly defined - parentage, custody, guardianship may be contested in the event of disagreement between parents -Legal status of children should be clearly defined in legislation
- Commissioning parents & surrogate mother should enter into a formal agreement
- Surrogate mother should still have the right to undergo an abortion

- Surrogate mother terminating agreement could be held liable for expenses incurred by commissioning parents
- Committee accepted principle: majority of people are in favour of surrogacy it could provide a legitimate alternative for infertile people who wish to have children
- Information gathered during national study tours and submissions received supported idea that surrogacy was a deep-rooted practice both formally and informally throughout SA

RECOMMENDATIONS OF COMMITTEE
- Existing legislation inadequate for regulation of surrogacy
- Legislation to regulate surrogacy is required
= will prevent present and future legal uncertainties
- An agreement between the parties is essential, but entire procedure, rights and duties of parties and legal consequences should be regulated by legislation
- Both full and partial surrogacy should be permitted, but full surrogacy is preferred

- Committee felt it unnecessary to legislate on informal surrogacy since it is done privately, but would encourage using the process in the Bill for better protection of all involved and to serve best interests of child
- Surrogate mother and commissioning parents should be fit and proper parents
- Surrogacy should be the remedy of last resort - inability to give birth to own child must be proven
- At least one commissioning parent should be genetically related to child

- Where commissioning parent or surrogate mother is in a relationship, the respective partners should also give consent
- Parties should enter into a written agreement to be confirmed by court
- Once agreement has been confirmed, it is a valid and enforceable document
- Surrogate mother and her relatives will have no rights with regard to child, but parties may agree on access and visitation r
- Contravention of legislation to be penalised