Surrogacy can be defined as an arrangement in which a woman carries and delivers a child for another couple of person. For many couples or persons who cannot conceive or deliver a child of their own, surrogacy is their last resort to have offspring genetically linked to them.
Until the enactment of the Children’s Act 38 of 2006, surrogacy was not recognised in South Africa, although there have been reported instances of informal surrogacy. Now, Section 292 of the Children’s Act provides for a formal written SMA to be entered into between the commissioning parents and the surrogate mother.
However, due to the fact that a child is subjected to the SMA, although not a party to the agreement, the High Court, as upper guardian of all children, acting in the best interest of the child, must confirm any SMA, as provided for in Section 295 of the Children’s Act, to render such agreements valid and before any artificial fertilisation of the surrogate mother may commence. Children’s rights to parental care are, amongst other, nationally protected by The Constitution of South Africa 108 of 1996 and internationally by the African Charter on Human and Peoples’ Rights, The Universal Declaration of Human Rights and The International Covenant on Civil and Political Rights. Accordingly the court will only confirm any SMA once it has satisfied itself that the commissioning parents are suitable and able to adequately provide for the child in future, both socio-economically and emotionally.
Upon considering unique and complex issues such as the risk of commercial surrogacy, best interests of the child and determining the suitability of commissioning parents, the North Gauteng High Court in Ex Parte Matter between WH, UVS, LG and BJS found that the following averments, with available supportive documentary proof, should be made in the affidavit supporting an application for confirmation of a SMA:
- That the parties to the agreement have fully complied with the requirements of a SMA as set out in Sections 292, 293, 294, 295 and 301of the Children’s Act, including, but not limited to:
- that the SMA is in writing and signed by all involved parties of which at least one of the commissioning parents, and the surrogate mother is domiciled within the RSA;
- that the spouse or permanent partner of the commissioning parent or surrogate mother has given their written consent to the SMA and is now also a party to the SMA;
- that the gametes of both, or one of the commissioning parents, or where the commissioning parent is a single person, the gamete from that person, is being used during the conception of the contemplated child, thereby establishing a genetic link with the commissioning parent(s);
- that the commissioning parent(s) are not able to give birth to a child due to a permanent and irreversible condition;
- that all the parties to the SMA are competent to enter into the agreement;
- that the commissioning parent(s) are suitable persons to accept parenthood of the child that is to be conceived and that the surrogate mother is in all respects a suitable person to act as surrogate mother;
- that all the parties to the SMA understands and accepts the legal consequences of the agreement, including their rights and responsibilities in respect thereof;
- that the surrogacy mother is not using surrogacy as a source of income, but has entered into the SMA for altruistic reasons and not commercial purposes, but that the surrogacy mother may be compensated for:
- expenses that relate directly to the artificial fertilisation and pregnancy, the birth of the child and the confirmation of the SMA;
- loss of earnings suffered by the surrogate mother resulting from the SMA;
- insurance to cover the surrogate mother for anything that might lead to her death or disability resulting from the pregnancy.
- that the surrogacy mother has a documented history of at least one pregnancy and viable delivery and has a living child of her own.
- Full particulars of how the commissioning parents came to know the surrogate mother and why she is willing to act as surrogate to them, including the surrogate mother’s background and financial position;
- A comprehensive report by a psychologist assessing the suitability of the surrogate mother and the effect that the surrogacy and giving up the baby will have on her;
- A medical report and full medical reports on the surrogacy mother dealing with her physical condition, HIV status and any disease that could be transferred from her to the child;
- Details of the gamete donor, if not coming from both the commissioning parents, without revealing the identity of the gamete donor;
- Full particulars of previous applications for surrogacy as well as the outcome and reasons of such applications;
- A comprehensive report by a psychologist in respect of the commissioning parents;
- All agreements between the surrogate mother and any intermediaries or other person involved in the process, including any details and proof of payments of any compensation for services rendered, either to the surrogate mother or the intermediary, gamete donor, clinic or any third party involved in the process;
- Full particulars of any agency involved and any payment received by them, including the exact business and involvement of the agency regarding the introduction of the surrogate mother, how the surrogate mother’s information was obtained by the agency and whether the surrogate mother received any compensation from the agency or commissioning parents;
- Whether any of the commissioning parents have been charged with or convicted with a violent crime or a crime of a sexual nature.
Any vague or generic allegations regarding these averments that fall short of supporting a conclusion may well render an application defective.
It is thus advisable to consult an attorney prior to applying for confirmation of Surrogacy Motherhood Agreements.
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