It has been argued that forcing a surrogate mother who has entered into a valid and voluntary surrogacy agreement to hand over the child against her will amounts to sacrificing her rights to reproductive autonomy and dignity to the principle pacta sunt servanda. This argument extends even in cases of full surrogacy, where the surrogate mother is not genetically linked to the prospective child. In this article the writer explores the rights to dignity and reproductive autonomy as enshrined in our Constitution and the long standing principle of the law of Contracts, the principle of pacta sunt servanda.
Surrogacy is regulated by chapter 19 of the Children’s Act 38 of 2005 (“the Act”). In the case of AB & another vs Minister of Social Development, the High Court defined surrogate motherhood agreement to be an agreement between a surrogate mother and the commissioning parent(s), in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent(s) and in which the surrogate mother undertakes to hand over such a child to the commissioning parent(s) upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent(s). A surrogacy motherhood agreement will only be valid if a Court has confirmed the agreement and has satisfied itself that the surrogate mother entered freely and voluntarily into the agreement and the best interests of the child were also considered.
The Children’s Act makes a distinction between full surrogacy, which comprises of parents who are reliant on a surrogate mother to carry their prospective child on their behalf without use of the surrogate mother’s genes and partial surrogacy, which comprises of the commission parent’s genes together with that of the surrogate mother, making the child genetically linked to the surrogate mother. In the case of full surrogacy, the surrogate agreement confers full parental rights to the commissioning parents from the moment of the child’s birth and in the case of partial surrogacy, these are suspended for a ‘cooling-off’ period of 60 days following the birth of the child, during which period the surrogate mother has the right to terminate the contract and keep the child.
From the above distinction it is clear that the surrogate mother in partial surrogacy is at liberty to decide to keep the baby and terminate the surrogacy contract between her and the commission parents any time before the lapse of 60 days following the birth of the child. She can make this decision without incurring any liability except to compensate the commissioning parents for the expenses they incurred in terms of the agreement. Although it can be argued that such termination amounts to breach of good faith by the surrogate mother, it is also obvious why the mother cannot be forced to give up her own blood in this case. However what happens in a situation where the surrogate mother refuses to abide by the agreement or to perform in terms of the contract in the case of full surrogacy agreement?
The Act clearly states that upon the birth of the child, the commission parents acquire full parental rights over the child in full surrogacy. Although in this instance the surrogate mother is not genetically linked to the baby, it cannot be disputed that a bond of some sort would form between the surrogate and the baby. After all the surrogate mother does carry the baby in her womb for the whole nine or ten months, feeling the baby’s every small movement, nourishing the baby with nutrients from her body and assisting in its development. In AB & another vs Minister of Social Development it was also held that a family cannot be defined with reference to the question whether a genetic link between the parent and the child exists.
Furthermore is section 10 of the Constitution which provides that everyone has inherent dignity and the right to have their dignity respected and protected. This means that no person should be treated merely as instruments or objects of the will of others. On the other hand section 12(2) provides that everyone has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction.
From the above analysis it can then be argued that compelling a surrogate mother to hand over the child against her will or even having the courts enforce specific performance in terms of the surrogacy motherhood agreement is unconstitutional as such an order would unduly impact the surrogate mother’s right to dignity and reproductive autonomy.
The surrogate mother’s rights however stand alongside the very important principle of pacta sunt servanda. In Barkhuizen v Napier the Constitutional Court held that the Constitution requires in general that parties should comply with contractual obligations that have been freely and voluntarily undertaken. This consideration is expressed in the maxim pacta sunt servanda, which the Courts have repeatedly noted, gives effect to the central constitutional values of freedom and dignity. Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity. Ngcobo J in Barkhuizen v Napier further held that the extent to which the contract was freely and voluntarily concluded is clearly a vital factor as it will determine the weight that should be afforded to the values of freedom and dignity.
The Children’s Act requires that surrogacy agreements be confirmed by the High Court. This is a mechanism put in place so that all parties involved in the surrogacy agreement are protected, the most vulnerable being the surrogate mothers, who could be exploited. The High Court does not confirm a surrogacy agreement unless it is certain that the contract is not of a commercial nature and it is satisfied that the surrogate mother is willing and capable to act in this capacity.
It thus can also be argued that surrogate mothers should be ordered to abide by their own choices in accordance with the principle of pacta sunt servanda. As held in Barkhuizen v Napier, the fact that a contract was entered into freely and voluntarily is a vital factor that should be afforded to the values of freedom and dignity. Surrogate mothers in South Africa enter into a surrogate motherhood agreement on free will ensured by the confirmation component of the agreement.
By Philile Khoza