Medical practitioners involved in artificial fertilisation or involved in rendering assistance in artificial fertilisation in respect of surrogacy should familiarise themselves with the relevant provisions of the Children’s Act 38 of 2005 (hereinafter referred to as “the Act”) or face possible criminal sanctions in respect of a contravention of the Act.

Prior to the Act coming into operation, South Africa did not have enacted legislation dealing specifically with surrogacy and surrogacy agreements. The Act changed this position and surrogate motherhood in South Africa is now regulated by Chapter 19 of the Act, which Chapter came into operation on 01 April 2010.

Chapter 19 of the Act limits surrogacy agreements to competent and suitable persons who are domiciled in South Africa and sets certain requirements and stipulations in respect of surrogacy agreements. These requirements include that:

• The agreement must be in writing and signed by all parties thereto.
• The agreement must be concluded in South Africa.
• The commissioning parent(s) must be domiciled in South Africa at the time of the conclusion of the agreement.
• The surrogate must be domiciled in South Africa at the time of the conclusion of the agreement. The Court may, however, on good cause shown dispose with this requirement.
• The consent of the husband, wife or partner of the commissioning parent and the surrogate must be provided in writing and such husband, wife or partner must become a party to the agreement. Should this consent be unreasonably withheld the Court may confirm the agreement without such consent.
• The commissioning parents must be unable to give birth to a child and the condition must be permanent and irreversible, and the surrogates must have had at least one healthy (still living) child prior to the surrogacy agreement being concluded.
• At least one of the potential commissioning parent(s)’ gametes must be used in the process of artificial fertilisation.
• The agreement may not to be entered into for financial gain, and any such commercial surrogacy agreements are illegal. The only compensation which may be exchanged is for the reasonable expenses incurred as a result of the in vitro treatment, the pregnancy and post-delivery care.

The agreement must be confirmed by the High Court prior to the surrogate mother being artificially fertilised in order for the agreement to be valid and enforceable. The Court will be tasked with determining whether all of the requirements imposed by the Act have been met and whether the agreement will be in the best interests of the child (once born). The interests of the child are of paramount importance in such cases. A few recent cases illustrate the Court’s approach in this regard.

In the matter of In Re Confirmation of Three Surrogate Motherhood Agreements 2011 (6) SA 22 (GSJ ) the South Gauteng High Court held that when it is presented with an application to confirm a surrogate motherhood agreement it is, as the upper guardian of all children, duty-bound to ensure that the interests of the child (once born) are best served by the contents of the agreement. The applicants will thus be required to supply proper and full details regarding themselves in order that the Court may determine whether the commissioning parents are indeed fit and proper to be entrusted with full parental responsibilities. The Court requires detail as to who the commissioning parents are, what their financial position is, what support systems (if any) they have in place, what their living conditions are and how the child will be taken care of. According to the Court, further good practice would be following the requirements for adoptions, where expert assessment reports from social workers are required together with a police clearance certificate to demonstrate the suitability of the adoptive parents. An expert report can also be obtained to address the suitability of the surrogate.

In the matter of Ex Parte WH and Others 2011 (6) SA 514 (GNP) the North Gauteng High Court dealt further with the information that the Court will require before confirming the agreement. The Court held that the applicants’ affidavit should contain:

• All the factors set out by the Act together with documentary proof thereof where applicable;
• Details of any previous applications for surrogacy;
• Reports by a clinical psychologist in respect of the commissioning parents and the surrogate;
• Medical report in respect of the surrogate;
• Details and proof of payment of any compensation for services rendered;
• All agreements between the surrogate and any intermediary;
• Full particulars if any agency was involved; and
• Whether any of the commissioning parents have been charged with or convicted of a violent crime or crime of a sexual nature.

As a general rule, the surrogacy agreement must be concluded and confirmed by the Court prior to the artificial fertilisation taking place. It has, however, recently been held in the matter of Ex Parte MS and Others 2014 (3) SA 415 (GP) that the conclusion and confirmation of the agreement may take place retrospectively, i.e. after the artificial fertilisation of the surrogate, provided that it is in the interests of the unborn child. In such an instance, the applicants would have to explain why the confirmation is being sought at a late stage and would have to satisfy the Court that the application is not aimed at (or will have the effect of) circumventing the objectives of the statutory regime. For example, post-fertilisation applications should be refused if the pregnancy was not the result of artificial fertilisation and the real object is to allow the commissioning parents to circumvent the adoption process.

The Court, however, pointed out that the fact that the conclusion and confirmation of the agreement may take place retrospectively does not mean that the parties are free to ignore the general requirement that surrogacy agreements must be confirmed by a Court before artificial fertilisation takes place. Generally, the Court’s discretion to confirm such agreements retrospectively will only be exercised in exceptional circumstances and when the best interests of the child demand confirmation. The window-period for such confirmation exists only during the period before the child is born. At birth, the child is deemed to be the child of the surrogate mother and the parties will have to explore other available options such as adoption, a parental rights-and-responsibilities agreement under section 22 of the Act or an application for guardianship of the child under section 24 of the Act.

The Court further pointed out that it is important to bear in mind that it remains an offence for any person to artificially fertilise a woman in the execution of a surrogate motherhood agreement or to render assistance in such artificial fertilisation without authorisation from a Court. Medical practitioners involved in the pre-confirmation fertilisation may thus remain open to criminal prosecution, notwithstanding that the relevant surrogacy agreement may have been confirmed by a Court subsequent to the fertilisation. Medical practitioners should thus insist on authorisation from a Court before agreeing to assist the parties in the artificial fertilisation process. A practitioner found guilty of contravening the Act may be liable to a fine or to imprisonment for a period not exceeding ten years, or to both a fine and such imprisonment.

In the event that the agreement is confirmed by the Court, and subject to the agreement not being validly terminated, the child born from the agreement is considered to be the child of the commissioning parent(s) from the moment of birth and the commissioning parents have full parental rights and responsibilities in respect of the child. The surrogate is obliged to hand the child over to the commissioning parent(s) as soon as is reasonably possible after birth and neither the surrogate nor her husband, partner or relatives have any parental rights in respect of the child.

It is clear from what has been stated above that Chapter 19 of the Act sets stringent requirements and stipulations in respect of surrogacy agreements. Commissioning parents and / or surrogates would be well served by obtaining legal advice prior to concluding a surrogacy agreement while medical practitioners dealing with aspects of artificial fertilisation would be well served by familiarising themselves with the salient provisions of the Act in order to avoid unwittingly participating in contraventions thereof which may result in serious implications for the medical practitioner.

Written by Sandra Bester (LLB), Associate, Markram Incorporated Attorneys