A Review of Surrogate Motherhood Regulation in South Africa
By: Jasmine Shafquat
While the conversation surrounding reproductive rights often focuses on access to contraceptives and abortions,[1] a point of contention in reproductive rights includes an individual’s right to procreate as well.[2] Surrogacy, an increasingly popular way to exercise this right to procreate, has complex social, ethical, moral, and legal issues associated with this form of assisted reproductive technology.[3] It thus comes as no surprise that the regulatory framework surrounding the surrogacy industry varies considerably from country to country.[4] To date, there is a spectrum of surrogacy regulatory systems, which includes some countries that lawfully permit surrogacy,[5] some countries that completely prohibit surrogacy,[6] some counties that severely restrict surrogacy,[7] and there are several countries where surrogacy is not prohibited or regulated.[8] Accordingly, this blog post focuses on South Africa’s surrogacy system in particular because understanding this country’s unique approach may help policymakers reform current and future regulatory frameworks surrounding surrogate motherhood.
Surrogacy is not only permitted in South Africa, but the country has adopted a detailed statutory framework over the surrogacy process.[9] Specifically, surrogacy arrangements in South Africa are governed by Chapter 19 of the Children’s Act 38 of 2005 (“Children’s Act” or “the Act”).[10] The Children’s Act dictates that surrogate motherhood agreements must comply with all of the requirements set forth in the Act in order to be considered a valid agreement.[11] If a surrogacy arrangement fails to comply with the requirements set forth by the Act, then “any action taken in execution of such an arrangement is for all purposes deemed to be the child of the woman that gave birth to that child.”[12] Compliance with the Children’s Act is, therefore, imperative for securing each parties rights and obligations.[13]
The Children’s Act first requires all parties to the surrogacy agreement to sign and execute a writing that is confirmed by a High Court prior to the artificial fertilization of the surrogate mother.[14] Additionally, the Act states that a surrogate mother must enter into the surrogate agreement for altruistic reasons rather than commercial purposes.[15] Correspondingly, a surrogate mother cannot use surrogacy as a source of income, but she may be compensated for medical expenses incurred and any loss of income under the Act.[16] One of the more contentious requirements of the Children’s Act is the condition that the surrogate child must be from the gametes of at least one commissioning parent.[17] This means that a couple where both partners are infertile would not be able to execute a valid surrogacy arrangement; whereas, a fertile, single individual would be able to execute a valid surrogacy arrangement.[18] It should be noted that this condition has been contested and nevertheless upheld by the country’s highest court.[19] Finally, the Children’s Act provides comprehensive guidelines on each parties’ rights at various stages in the surrogacy process.[20] For instance, the Act stipulates that the commissioning parents’ rights begin upon the moment of birth,[21] the conditions in which a surrogate mother may terminate a pregnancy,[22] and a description of how a surrogate mother can exercise her right to terminate the surrogacy agreement.[23]
In sum, South Africa provides a strict and comprehensive statutory framework for regulating surrogacy.[24] South Africa’s surrogacy system attempts to minimize the risks involved in a surrogacy arrangement by involving the judicial system at the outset of the agreement and clearly defining each parties’ rights and obligations under various complex circumstances.[25] However, this approach has been criticized for failing to fully protect surrogate mothers given that surrogates are unable to be directly compensated for their services.[26] On the other hand, proponents of the altruistic approach adopted by countries like South Africa worry that compensating women for surrogacy services will result in abusing women of lower socio-economic statuses “as breeding machines.”[27] Accordingly, policy makers are left with a difficult choice when drafting legislation that safeguards surrogate mothers in this intricate arrangement.[28] Lastly, the Children’s Act has also been criticized for requiring a genetic connection between the commissioning parent and surrogate child.[29] Although surrogate motherhood regulation in South Africa is not without faults, understanding the country’s approach can help lawmakers create a new way to regulate surrogacy that achieves certainty in each parties’ rights and obligations, protects surrogate mothers, and provides individuals with more autonomy in regard to their reproductive choices – especially in the countries where surrogacy is neither prohibited or regulated.
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Picture Credit: Surrogacy - RESOLVE: The National Infertility Association
[1] Melissa Javan, The Fascinating World of Surrogacy in South Africa, Maverick Citizen (Apr. 13, 2020), https://www.dailymaverick.co.za/article/2020-04-13-the-fascinating-world-of-surrogacy-in-south-africa/.
[2] Id.
[3] Nayana Hitesh Patel et. al., Insight into Different Aspects of Surrogacy Practices, 11 J. Hum. Reproductive Sciences 212, 212 (2018).
[4] What are the International Surrogacy Laws by Country?, Intended Parents, https://surrogate.com/intended-parents/surrogacy-laws-and-legal-information/what-are-the-international-surrogacy-laws-by-country/ (last visited Oct. 4, 2020).
[5] For example, surrogacy is legal in Australia, Canada, South Africa, and Thailand. List of Countries where Surrogacy is Legal: An International Surrogacy Overview for the Intended Parents, IVF Conceptions, https://www.ivfconceptions.com/countries-where-surrogacy-is legal/#:~:text=Countries%20where%20commercial%20surrogacy%20is%20legal,-So%2C%20what%20are&text=In%20the%20current%20time%2C%20eastern,protection%20for%20the%20commissioning%20parents (last visited Oct. 4, 2020). Notably, the United States does not have federal legislation regarding surrogacy, but the practice is legal and regulated in some states. Id.
[6] For example, surrogacy is prohibited in Cambodia, Denmark, France, Germany, Ireland, Italy, Spain, Portugal, Bulgaria, and Nepal. What are the International Surrogacy Laws by Country, supra note 4.
[7] For example, Israel has very detailed legislation on the regulation of surrogacy contracts, which has prompted many individuals to obtain surrogates outside of the country. Daphna Birenbaum-Carmel, Incidence of Surrogacy in the USA and Israel and Implications on Women’s Health: a Quantitative Comparison, 36 J. Assisted Reproduction & Genetics 2459, 2459 (2019).
[8] For example, surrogacy is not prohibited or regulated in Kenya, Malaysia, and Nigeria. What are the International Surrogacy Laws by Country, supra note 4.
[9] Children's Act 38 of 2005 ch. 19, available at http://www.ci.uct.ac.za/sites/default/files/image_tool/images/367/Law_reform/Children_Act_guides/consolidated_childrens_act_1april2010.pdf.
[10] Id.
[11] Id. at § 292.
[12] Id. at § 297(2).
[13] Id.
[14] Id. at § 292.
[15] Id. at § 295(c)(v).
[16] Id. at § 301.
[17] Id. at § 294.
[18] Shani Van Niekerk, Modern families: Surrogacy is An Option, Go Legal (Sept. 27, 2018), https://www.golegal.co.za/surrogacy-south-africa-children/.
[19] AB v. Minister of Social Development, 2016 ZACC 43 CCT 155/15.
[20] Children's Act 38 of 2005 ch. 19 §§ 292-303.
[21] Id. at § 297.
[22] Id. at § 300.
[23] Id. at §§ 298-99.
[24] See id at §§ 292-303.
[25] See id.
[26] Claire Fenton-Glynn, Surrogacy: Why the World Needs Rules for 'Selling' Babies, BBC (Apr. 26, 2019) https://www.bbc.com/news/health-47826356.
[27] D A Frenkel, Legal Regulation of Surrogate Motherhood in Israel, 20 Med. & L. 605, 605 (2001).
[28] See generally id.
[29] T. Metz., Questioning South Africa's 'Genetic Link' Requirement for Surrogacy, 7 S. Afr. J. Bioethics & L. 34, 34 (2020).