By: Victoria Keppler and Michael Bokelmann
The legal situation concerning surrogate motherhood is very favourable in South Africa. However, on a noncommercial level. Brokering-agencies are sofar unknown.
The development started when a 48-year old woman in Tzaneen gave birth as a surrogate to triplets genetically related to her daughter and son-in-law in April 1987 (This story is also refered to as the Ferreira-Jorge case).
It was a landmark case in South Africa, which also received coverage around the world. Despite the odd constellation that the surrogate mother was carrying her own grandchildren everything worked out to the best of all paricipants. In the aftermath no law was enacted to ban surrogacy. This might have been due to the fact, that South Africans are quite keen to make medical advances (the first heart transplantation was performed at the Groote Schuur Hospital in Cape Town in 1967).
From the early nineties onwards infertility clinics offered surrogacy programs. Usually the surrogate functions as a gestational mother and is a close friend or relative of the commissioning parents.
In 1993 the South African Law Reform Commission published an elaborate report
(project 65) on surrogate motherhood speaking out in favour of rather permissive legislation. The commission concluded that the relevant existing law (ie. the Human Tissue Act, the Children„s Status Act and the Child Care Act) were not drafted with a view to surrogacy and accommodate it very unsatisfactorily. For example, the child is regarded as the child of the surrogate mother (and her husband) upon birth. The commissoning parents then have to undergo a rather lengthy adoption process in order to obtain legal parenthood.
Since the new Constitution was introduced in 1996, it took lawmakers some time to come forward with a law for surrogacy. The long planned law can now be expected for early 2001. It will mainly encompass the following provisions:
Surrogate motherhood will only be an option for married couples. (this is still debated, because of potential discrimination) It remains to be seen, what course the law is going to take.
There has to be a medical indication for surrogacy.
The prospective surrogate must have at least one child.
Gametes of the surrogate mother or her husband may not be used. But donor gametes are allowed.
A court has to be satisfied with the suitability of the surrogate and the commissioning parents.
A written agreement between the parties is mandatory. This also needs court approval.
The surrogate should not enter into the agreement for commercial reasons. She will only be compensated for actual expenses.
If these steps are adhered to, the commissioning parents will be considered the child„s legal parents upon birth. No legal bound between the surrogate and the child will exist. This implies that the surrogate has no right of parenthood, custody or access to the child.
It can reasonably be expected, that this law won’t impose severe restrictions on surrogacy.
Section 12 2a of the South African Constitution which gives anyone the right to make decisions concerning reproduction supports this point of view.
To sum it up:
At present, there is no law governing surrogacy in South Africa. The disadvantage being, that the commissioning parents have to undergo adoption, even if the child is genetically theirs. Changes can be expected early 2001. The overall situation and the public image are very surrogacy-friendly. The case of a very famous South African heart-surgeon, whose sister-in-law gave birth to twins for her as a gestational-surrogate in November 2000 may serve as an example. It raised public awareness and received very positive news coverage.
Copyright 1997. The American Surrogacy Center, Inc.(TASC), Kennesaw, GA
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