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Surrogacy in South Africa

Surrogacy, the principle of one woman carrying a baby in utero for another person, is said to be as old as biblical days where a principle referred to as antiquity was in practice. In terms of Babylonian Law, the male could father a child with a surrogate mother in an attempt to save a marriage.

 
Accordingly the concept of a woman carrying a child for another person has its origins as far back as man's earliest days on earth. The need to procreate, the need to be a parent has and will always remain something significant for human beings. Surrogacy offers a solution for dilemmas where it physically is an impossibility to carry your own child.
 
The most common form of surrogacy is gestational surrogacy. This is where the surrogate mother is only the carrier and none of her genetic material is used. Either the commissioning parent or her elected egg donor will contribute the eggs. This is also the more favoured surrogacy type. Infrequently traditional surrogate programs take place, mostly for economic reasons. In such cases, a process of artificial insemination takes place to fertilise the surrogate mother's eggs.
 
Traditional surrogacy carries risks of greater emotional attachment, increased difficulty to find a surrogate who is able to meet suitable requirements for surrogacy as well as being a good genetic match in terms of the gametes. There is also the psychological matter of greater bonding with the baby as the surrogate is carrying her own genetic material, making separation and giving the baby up that much harder. In terms of availability, a traditional surrogate is also required to be younger as younger gametes are required to a healthy pregnancy – making gestational surrogates more easily available.  Legally, this may pose increased concerns. In South Africa, traditional surrogates can decide up to two months after the birth of the baby that they would rather not give this baby up. This major obstacle can create significant uncertainty and so actively discouraged for surrogate programs.
 
Ultruistic surrogacy – the more prominent type of surrogacy worldwide is encouraged and viewed more ethically acceptable, advocating that woman come forward to help for no financial gain. Many people have felt quite strongly for the idea of "wombs for rent” within limits. But similarly there are strong views against not helping surrogates financially. The principles are supported by the logic that if a surrogate is giving such an amazing precious gift and availing herself in such a dedicated and committed fashion, it is equally appropriate to help her in a way that would be meaningful and significant for her. People in support of this would prefer a managed type of commercial surrogacy.
 
Needless to say, surrogacy always attracts interest from people worldwide mostly because it really touches on human relations in such a significant way and always takes people's breaths away. It is basic nature to want to know more and ask so many questions around it because it involves so many different elements.
 
Most commonly bystanders want to know about the emotional aspects. Typically a surrogate woman has the profile of someone who wants to help. She may have seen or heard about the anguish and torment infertility can take, and for her conception and pregnancy may have been something that happened with ease or possibly without even planning. She is empowered if she can make such a difference. It may also give her the opportunity to be the centre of attention for a little while, although emotionally this requires management that not only will the child be the focus after birth, but her role will then become obsolete. These are all delicate matters that require careful assessment and consideration prior to her even proceeding. However, a surrogate mother is a woman who has understood these aspects, thought through them and still volunteered. A surrogate mother is also someone who is emotionally supported by friends and/ or family emotionally and psychologically. Surrogate programs that fail even before starting are often as a result of an insufficient support structure.
 
Surrogate mothers are required to meet some minimum requirements medically - good health and a strong uterus. Socially, surrogate mothers are very different people. It may be a wealthy established executive who has achieved so much and wants to share some of her blessings by availing herself as a surrogate mother. It may be a young lady who is a stay at home mom with no education and feels she can contribute positively by sharing her healthy uterus with another and carrying their baby or obviously a profile of someone in between these different ranges. The important aspect is that the surrogate and commissioning parent must be right for one another and this is a personal decision that only the parties to such a surrogate program can make. Commissioning parents may have specific requirements and only happy to proceed once they meet the right person for them.
 
In South Africa, there are increasing couples coming forward seeking assistance of surrogate mothers with an egg donation option.   Many people struggle with pregnancy challenges, such as prematurity, still born, uterine operations, clotting disorders, cancer, hysterectomy and medical caution against becoming pregnant, these are all reasons woman seek out other woman to help them.
 
The significance of a surrogate program should not be underestimated. It may be that it takes a commissioning parent a few years to make a final decision and proceed to actually take this giant leap of having faith in someone else. Some couples really take their time and elect to have long periods between each phase in a surrogate program. This may be to prepare themselves emotionally and/ or financially. Other couples cannot proceed quickly enough and even source a second surrogate to run a parallel fertility course to their first surrogate. This would increase their chances for success with simultaneous fertility treatments, but so attract simultaneous costs associated with these control double programs. Often it can take the commissioning mom a little longer to accept the surrogate relationship and be in a position to succumb to relinquishing control to the surrogate mother – to accept that she has the health and strength of another woman's uterus to carry her child. This is a major psychological aspect and requires significant soul searching before a female commissioning parent may be ready. But as people, we are all so very different, so the varying scenarios are all unique.
 
Surrogacy is a highly personal and private matter and invokes varying emotions for the people involved. There are couples who cannot agree on surrogacy. Where a woman desperately wants the status quo to remain and can possibly accept the inability to conceive, she may not want to embark on a surrogate program. She may not want more children, but her partner is desperate and may even threaten the marriage because he feels so strongly about the desire and very need to proceed on the surrogate program. Alternatively, situations in the converse may arise as well. The best recipe for a successful surrogate program is where there is complete unanimity between commissioning parents, where both parties have the same objectives and aspirations in terms of the surrogacy, essentially where the dreams are in complete alignment.
 
So it is no surprise that surrogacy can impact on a relationship. There is suddenly quite a significant other female carrying the baby, so she is very important. This aspect of the relationship requires very careful assessment and clearly defined roles and boundaries should be established amongst the parties so that every one is protected and respected.
 
Depending on the processes followed and the persons involved, up until 1 April 2010, no formal legislation had been promulgated guiding people around surrogacy in South Africa. The only clear resolution was that the birth mother is the natural mother. This placed surrogacy agreements in a state of uncertainty. All surrogate programs through baby2mom since November 2009 were facilitated through surrogacy attorneys who submitted surrogate agreements to court, providing extensive control. In an attempt to facilitate quality and professional guidelines, the processing of a formal surrogate agreement, submitted the High Court was deemed the most appropriate process. Consequently the promulgation of legislation with an entire chapter dedicated to surrogacy dictating specific procedures with controls was viewed with varying emotions. This aspect of law was not considered relevant for many years, so the sudden interest drew an element of surprise. Adding to that, it very clearly stated the controls and requirements. The court orders were already actioned as part of best practice surrogate programs applying ideal controls
 
South African surrogacy is very well documented with the introduction of the Children's Act effective as from 1 April 2010. This has very serious consequences and provides very clear guidelines to surrogate mother programs for both surrogates and commissioning parents.
 
Prior to the legislation, the status of a surrogate agreement and surrogate program was quite uncertain leaving a feeling of uneasiness for all surrogate mother agreement parties. Without following best practices, a lengthy and expensive process of adoption was required. Fortunately for all South African surrogacy agreements, a reputable surrogacy agency was already following best practice processes to ensure appropriate controls.
 
The implications for all parties are concise and although the process may be perceived as quite lengthy and onerous, the toolkit actually provides a well constructed step by step experienced instruction and facilitation.
 
In accordance with South African legislation, the Children's Act, an entire chapter is dedicated to surrogacy. For surrogate mothers, there are clear guidelines pertaining to who may apply to become a surrogate mother. She must have a documented record of a successful pregnancy and have at least one child of her own. Her competence and clear understanding is also a factor and she is required to have domicilium in South Africa.
 
For commissioning parents, the requirements are quite extensive. For starters, South African domicilium is required, a medical requirement supporting the need for surrogacy is needed and from a genetic perspective, the gametes of either both or one of the commissioning parents is needed to conceive the child.
 
Before parties to a surrogate agreement need to start obtaining necessary supporting reports, they need to have initial agreement. Matters to be discussed include the type of birth, the nature of relationship during and after the pregnancy, the intimacy with which commissioning dad(s) will partake. The surrogate mom may not be comfortable with the dad attending internal scans and/ or being in the room when the baby is born. These are private moments and consensus is imperative. The type of care and attendance during the surrogacy pregnancy is also imperative. How the surrogate mom gets to appointments, obtains required medication, vitamins, prenatal care, maternity clothes is also an important area for discussion. In terms of the Childrens Act in South Africa, the surrogate mother can make the necessary decisions on terminating a surrogacy pregnancy (for medical reasons) but is required to consult with the commissioning parents on this matter. These and all areas of the intricate surrogacy relationship require discussion, clarity and agreement. Often, people are reluctant to converse on sensitive matters, but open honest clear communication on all aspects is the best way to securing an optimal surrogacy partnership.
 
The surrogate agreement, required to be facilitated by an experienced surrogate lawyer, requires necessary supporting documentation. For the surrogate mother, these include the medical approval of the surrogate to become pregnant and the psychological report. Her partner is also required to sign the surrogacy agreement. These independent reviews by specialist areas, also provide good segregation of duties and consequently good controls supporting all.
 
Both parties of commissioning parents are needed to sign the surrogate contract. Reports required for surrogacy commissioning parents include the medical confirmation of the need for a surrogate to become a parent, psychological reports confirming and the report confirming at least one of the gametes will be used. In the event of only male(s) being the surrogate commissioning parent(s), confirmation is required of a female influence in their lives. Sometimes, even to approve the court order timeously, the judge may ask for a further report about the timing to apply a timely court response.
 
The surrogate agreement along with necessary reports is submitted to the High Court for approval by the appropriately commissioned surrogate attorneys. Such approval relinquishes rights and responsibilities from the surrogate in favour of the commissioning parents. Such an approved surrogate agreement implies that the commissioning parent need not proceed with any further legalities. No administrative adoption is required and no further legalities are necessary.
 
This court order relinquishes all rights and responsibilities from the surrogate mother and when the bay conceived of this type of treatment is born, the commissioning parents may immediately register the child in their name. So, a situation of absolute clarity, is obtained and both parties get exactly what was agreed, with no options for a change of heart. The surrogate agreement will need to make provision for appropriate parental care in the event of something happening to the commissioning parents, as this parental responsibility will not automatically fall on to the surrogate mother. Her role is only for the in utero care of the unborn child.
 
No fertility clinic may transfer embryos into a surrogate unless a court order is presented. Fertility treatments may be initiated, but the actual implantation can only happen with formal legal approval. This way all parties know where they stand. The court order is also valid for 18 months so the surrogate agreement between parties enables fertility treatments for this time.
 
The Childrens Act is very clear regarding matters on surrogacy and failure to adhere to such may be deemed to be a criminal offence.
 
South African surrogacy does not discriminate against any persons regardless of relationship status, race of sexual preference. It is however important to emphasise that a surrogacy agreements is facilitated by experienced surrogate attorneys or surrogacy lawyers who understand the process and requirements of judges approving these surrogate agreements.
 
Surrogacy, like any field, is a specialist area and invokes high emotions. A program of this nature is optimised if guided by professional bodies experienced in these elements, those who understand the legislation, can refer to specialists for necessary reports, guidelines and advice.
 
baby2momEgg Donation Agency, specialises in egg donation and encourages interested parties to consult the surrogacy attorneys, for any further aspects pertaining to the legal matters.

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