Advocate Veerash Srikison cautions couples to consider the legal implications and underlying risks of having a child through surrogacy.
It is indeed a noble task for one woman to bear a child for another and then to hand over the surrogate child to be raised, in most instances without knowing her as the birth mother. Surrogacy has been legally validated in the Children’s Act and only recently in case law has the surrogacy agreement been tested in terms of its boundaries. Judgements and the law have shown that surrogacy as an act of a couple or single person’s final attempt to have a child of their own can easily be exploited and the deficiencies in the surrogacy agreement could leave a child with the possibility of having six potential parents.
Chapter 19 of the Children’s Act looks at the legal requirements necessary for a valid surrogate agreement to be concluded, the effects of the agreement or non-fulfilment of the terms, and the termination of the agreement along with the consequences that befalls all those part of the surrogacy arrangement. One of the requirements for a surrogacy to be confirmed legally valid in the High Court is that at least one or both gametes come from the commissioning parent(s) to create a fertilised embryo. Therefore, a child could be born from a full surrogacy or a partial surrogacy.
The surrogate mother’s own ovum is fertilised by the sperm of the commissioning father-to-be. The commissioning mother-to be will have no genetic link to her surrogate child. The law allows for this scenario to occur and that all relevant consent is obtained from the parties to this surrogacy agreement. This includes any partner or husband of the surrogate mother accepting that she will bear the child for the commissioning parents.
Generally where a valid surrogate motherhood agreement is concluded and confirmed by a court, full parental responsibility will automatically fall on to the commissioning parent(s) the moment the surrogate child is born.
What the law unfortunately cannot control though in a partial surrogacy, is that despite the commissioning parents and the surrogate mother concluding and confirming a surrogate agreement, and after artificial fertilisation, the partial surrogacy arrangement can be terminated at anytime by the genetically linked surrogate mother up to 60 days after the surrogate child is born. The legal consequences of this termination must be understood clearly.
Once the partial surrogate mother has decided to terminate the surrogacy agreement after artificial fertilisation, by invoking her right to terminate the surrogacy agreement in terms of section 298 in the Children’s Act, and the court is satisfied that she understands the effect of her termination, she will become the parent of the surrogate child (her biological child) – if it is in the best interests of that child to do so.
If the partial surrogate mother does not have a husband or partner willing to share the parental responsibilities over the child, the commissioning father (the other half of the biological link) will have to take on these responsibilities of parenthood and will be regarded as the parent of the child.
So in this instance, in Section 299 of the Children’s Act, the law allows for the potential surrogate child to have two parents biologically related to him/ her without them necessarily being in a relationship with each other. This in turn could be traumatic for the commissioning mother, who will have no rights of parenthood over the surrogate child. She might also have to watch her partner or husband develop a relationship and be regarded as the registered parent of the surrogate child with the surrogate mother.
It is important, therefore, that women fully understand surrogacy as the method they use to have a child of their own and the underlying risks involved.