Surrogacy South Africa: emerging themes Julia Sloth-Nielsen

1. Surrogacy South Africa: emerging themes Julia Sloth-Nielsen

2. Overview • Brief historical introduction and consideration of its impact • Characteristics of surrogacy • Essential requirements for a valid agreement • Role of judicial oversight • Current developments

3. Historical overview • 1987 – birth of triplets • SALRC report on surrogacy 1990 • 1994 ad hoc Parliamentary Committee • SALRC final report • No separate legislation though • Tacked onto Children’s Act in 2007 • Explains: lens of children’s rights; some of the criteria for validity; lack of regulations; lack of attention to intermediaries and clinics; lack of ‘regulator’ or central authority; absence of anything on customary surrogacy

4. Characteristics • Pre-conception confirmation by a High Court (provincial level) • Expensive (requires attorneys and advocates involvement) • Preserve of the wealthy • Numbers unknown, likely to be 100s rather than 1000s • Altruistic surrogacy only permitted (expenses may be paid)

5. Essential requirements • Domicile in SA (unless exceptional reasons for deviating) • Written agreement to be drawn up in SA • Parties infertile or unable to give birth • Genetic link of one party required (upheld as constitutional in AB v Minister of Social Development) • Surrogate and commissioning parent(s) to be suitable (social/psychological

6. Essential requirements • Ex Parte K (2017) • Ex Parte CJD (2017) • Consent of partners (commissioning and surrogate) required • Ex Parte WH: full financial disclosure of all payments to be made required (no ‘lump sums’) • Info about any previous surrogacy arrangements required • Police clearance

7. Essential requirements • No artificial fertilisation before confirmation or after 18 months (made an offence) (Ex Parte M (2014)) • Also an offence to make it known that person willing to be a surrogate • Effect: child is legal child of commissioning parent from birth (unless biological link to gestational mother – 60 days ‘cooling off’ period) • Where surrogacy agreement does not comply with the Act, child remains legally that of the surrogate

8. Authorised payments • S 301: claims directly related to the artifi cial fertilisation and pregnancy and birth of the child; expenses related to the confirmation of the surrogacy agreement itself; loss of earnings suffered by the surrogate in consequence of the surrogacy agreement; insurance for the surrogate mother to cover for death or disability; and bona fide professional medical or legal services. • Ex Parte HPP; Ex Parte K

9. Role of Judicial Oversight • Practice Manual Gauteng • No central database of confirmations • Ex Parte WH – guidelines • International surrogacy? Ex part WH, Namibian case, RSA children now in the UK, websites… so murky.

10. Current developments • SALRC investigation into right of the child to know his or her genetic origins (cf s 41 Children’s Act) • Amendments to the Children’s Act (Feb 2019 version): • “303A. The Minister may, in consultation with the Minister of Health, make regulations regarding any matter necessary to facilitate the implementation of this Chapter, including the requirements to be complied with by anyone involved in surrogacy.".

11. Current developments • New eligibility criteria in principle including: • an indication of the circumstances under which the commissioning parents and the surrogate mother met and the reasons for the surrogate mother's willingness to act as surrogate; • an indication of the circumstances of the surrogate mother including her financial position;

12. Current developments • copies of all agreements between the surrogate mother and any intermediary or any other person who is involved in the process; and • details and proof of payment of any compensation for services rendered as contemplated in section 301(2) and (3) of this Act.

13. Current developments • New ‘health and age’ suitability requirement for surrogate and commissioning parents • High Court will get power to dispense with genetic link requirement (no intention to deviate from High Court model) • ---------------------------------------------------------