Modern families: Surrogacy is an option

27 Sep 2018

Robbie Williams and Ayda Field have welcomed a third child together via a surrogate after a “long and difficult” struggle to have another baby. How does surrogacy work in South Africa?

Go to varsity, meet your soulmate, get married and have babies. This is how the fairy tale goes, right? Unfortunately conceiving a baby is not as easy for some couples and the fairy tale comes to an abrupt stop.

For some couples a baby is conceived within minutes of opening a bottle of red wine and adding the vital ingredients – romantic background music and a few candles. Unfortunately for some couples conceiving naturally is not only a stressful and difficult process but also unfortunately completely impossible.

The rise of the modern family has created the need for ‘modern conception’. Fortunately, the fairy tale does not have to end in misery for same-sex couples or couples who cannot conceive for medical reasons. The route to the final chapter of the fairy tale may have to include a few additional twists and turns along the way. Adoption might be the first possibility that comes to mind, but not all parents are able to adopt, or adoption is just not an option for them. Surrogacy is therefore becoming more and more popular.

Many celebrity couples have brought children into this world through surrogacy. Amongst them are Nicole Kidman, Elizabeth Banks, Tyra Banks, Jimmy Fallon, Lucy Liu, Sarah Jessica Parker, Elton John and Ricky Martin; and most recently, Robbie Williams and his wife Ayda. Surrogacy is clearly a key to the long-term fulfilment of your dream to raise, care for and love a beautiful child.

A surrogate is a woman (“the surrogate mother”) who carries the baby on behalf of the future parents or parent, referred to as the “commissioning party/ies”) who are medically unable to do so. Surrogacy in South Africa is regulated by chapter 19 of the Children’s Act 38 of 2005.

“Regulated by the Children’s Act” means that in order for future parents/the commissioning parties to make use of a surrogate as a means to start or complete their family, they need to comply with the provisions of the Act. Failure to comply with the provisions of the Children’s Act will result in serious consequences for all the parties concerned, in particular it will affect the rights and obligations (responsibilities) of the parties in respect of the child.

An important aspect of statutory compliance with the Children’s Act is that all the parties will need to conclude a written agreement with each other prior to embarking on the process of surrogacy. This agreement must be confirmed by the High Court and be made an Order of Court PRIOR TO THE SURROGATE BEING INSEMINATED.

Some of the most important aspects to remember when considering surrogacy are:

1. A surrogate mother’s motivation to assist commissioning parents must be altruistic. She may as such not receive a financial benefit for being a surrogate, other than being re-imbursed for her expenses, the ambit of which are regulated by the Children’s Act i.e. medical expenses or loss of income due to her not working;
2. At least one of the commissioning parents need to be the biological parent of the child to be born from a surrogate mother. That means that one of the commissioning parents would need to provide either an egg or sperm for purposes of the artificial fertilisation. It entails that where one of the commissioning parents is conception infertile (does not have viable eggs or sperm), then donor eggs or sperm may be used provided one of the commissioning parents utilises his/her egg or sperm with the donor’s material for the artificial fertilisation process.
3. The surrogate mother and commissioning parents must, at the time of concluding the agreement, be domiciled in South Africa. If a surrogate mother is married or in a relationship, her husband and/or partner should also agree to her becoming a surrogate. This requirement also applies to a single commissioning mother who is in a permanent relationship at the time.
4. Provided the agreement is confirmed by the High Court, a child/children born from a surrogate mother will, by law be regarded as the lawful child/children of the commissioning parents, and the surrogate mother and her partner will have no parental rights or obligations towards the child.

Due to the sensitive nature of surrogacy and the complexity of the agreement and process to be followed, it is of the most utmost importance that the surrogacy agreement be drafted by an experienced attorney. If you attempt to proceed with surrogacy without having a legally acceptable contract approved by the High Court, the baby will legally belong to the birth mother, the surrogate mother.

See also:

• Part 1: The new approach to maternity leave
• Part 2: Paternity leave a step closer to becoming law

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)