Surrogacy in Africa – the new frontier? Prof Julia Sloth-Nielsen UWC April 2019

1. Surrogacy in Africa – the new frontier?Prof Julia Sloth-NielsenUWCApril 2019

2. Background and history • Cultural context • Emerging ART facilities and services (medical) • Eg as at September 2018, 6 ART facilities in Uganda • Demise of International surrogacy in the East (Thailand, Cambodia, India) • Cost relative to (eg Calfornia)

3. South Africa • Regulated environment via the Children’s Act • Requires pre-conception approval of a Surrogate Motherhood Agreement (SMA) by a High Court • Altruistic surrogacy only is allowed permissible and itemised expenses to be detailed in application for approval of SMA

4. South Africa • Genetic link requirement confirmed by the Con Crt in AB (2016) • Only available if one or both commissioning parents is domiciled in RSA • Surrogate also to be domiciled in RSA, but court may dispense with on good cause shown (eg surrogate is sister living abroad)

5. South Africa • Commissioning parents must be unable to give birth – condition must be permanent and irreversible • Legal certainty about parenthood – from birth, commissioning parents are legal parents unless there is a genetic link to the surrogate mother (her embryo) – then she has 60 days to terminate the SMA

6. South Africa • No centralised data base (High Courts do not keep central records in each division); hospitals mostly private clinics • No national body (eg Central Authority) • Involvement of intermediaries and agencies • Although no advertisement of SMA services allowed…

7. International dimensions • WH case – both from Europe, second SMA in a year • No proof of domicile in RSA • Namibians domiciled in Namibia – child born last month; SMA agreement was confirmed by RSA High Court • “Fraudulent” court papers discovered relating to SMA – two children, now in the UK, unclear where commissioning parents were domiciled

8. Kenya

9. Kenya • 3 August 2018 • Chinese tourist Neo Kian Fu was charged alongside Dr Mahesh N Chudasama and Josephine Muthoni Kariuki with attempting to traffic the baby to Singapore. • Mr Kian Fu and Ms Kariuki had claimed the baby was their son. The Chinese national has a three-month tourist visa. • Kariuki, 27, would receive Sh28,500 each month for the entire gestation period, with a final sum of Sh500,000 after documentation of the child and release through court procedures

10. Kenya • drama started at Mombasa Hospital when doctors attempted to hand the child over to the legal father. She refused (she was biological mother) • It is not clear why Muthoni changed her mind despite signing legal papers to give the child to the Chinese father

11. Kenya • A.M.N and others v AF Kenya (2015) KLR • 5th February 2013, Z delivered twin babies of the female gender at the Kenyatta National Hospital, the 3rd Respondent, after IVF at the Nairobi fertility centre. • X and Y unable to conceive (no endocervical canal) • After legal advice from the Attorney General, birth certificates issued with X and Y named as parents

12. Kenya • X and Y sometime after June 2014 applied for British Citizenship for the children and to enable them travel to the United Kingdom • Response from UK immigration: • Adoption under Article 23 of the 1993 Hague Convention on the Protection of children and Co-operation in Respect of the Inter-Country Adoption – certificates issued under The Hague Convention Article 23 are acceptable for passport services. • Registration as a British citizen – it is open to you to contract the United Kingdom Visa & Immigration service (UKV&I) with a view to registering the children as British citizens.

13. Kenya • Further: “your daughters’ claim would be based on the fact that they had a British parent named on their birth certificate. Information provided in support of your daughters claim have raised concerns that the details given on the birth certificate were found not to be true…” • No law on surrogacy in Kenya • Therefore Z is legal mother, and only option available is adoption

14. Kenya • Reproductive Health Care Bill (2014) and the Assisted Reproductive Technology Bill (2016) drafted • Age limit of 25 for Surrogate • Requires genetic link and infertility • Altruistic only permitted • Domicile of Kenya required

15. Nigeria • Baby factories are usually buildings or institutions such as hospitals or orphanages that have been converted to shelters for young pregnant girls and women for the purpose of delivery • and selling off their offspring

16. Nigeria • Characterised by baby breeding, forced impregnations, sale of babies, illegal adoptions, unlawful detention of young women, and even human trafficking. • It is not uncommon in baby factories for women to be forcefully impregnated by one of their kidnappers or an associate for the sake of birthing another offspring to be trafficked after a completed cycle

17. Nigeria • Thriving business of “baby factories” (Adelakun) • No legal framework, but not prohibited • Dealt with on the basis of the law of contract • Nigerian law reform commission has recommended that legislation should provide for the gestational mother to be the legal parent, and the commissioning parents to adopt post birth

18. Nigeria • Link to adoption/orphanages • “The orphanage homes are the problem. For instance, I later got to know that the woman who came from London to pick the child I had already identified had been given them money at the orphanage. We should not lie or hide thing here, the orphanages are not trust worthy, if they see somebody to give money, they would give the child as fast as possible.”

19. Nigeria • Bill was introduced to parliament in 2012 – but did not enjoy support of the legislators • 2014 National Health Act was passed • S 10 specifically outlaws manipulation of human genetic material – implied ban on ART • Amendments to regulate via this Act ART introduced again in 2016 – not finalised though • Private members Bill also to regulate ART (and surrogacy again introduced in 2017, and passed second reading

20. Nigeria • If passed, will permit monetary compensation for the surrogate over and above expenses • Adekalun speculates that, since commercial surrogacy is already practiced, this is an attempt to get support to get the Act through Parliament • ART clinics may not adverstise surrogacy services, but surrogates permitted to do so

21. Nigeria • This Bill will allow cross border surrogacy provided that out-of- country commissioning parents must employ an in-country guardian to look after the surrogate during and after pregnancy

22. Ghana • Thriving surrogacy practice (commercial too). • No legislation • International surrogacy is not prohibited • No clarity of legal status of surrogate born child • There has been public outcry about exploitation of surrogate mothers • Health workers have allegedly imprisoned surrogates in their homes or allegedly stolen babies

23. Ghana • “Denise who successfully delivered of quadruplets, felt cheated when her agents refused to offer her the agreed rental accommodation amidst complaints that the monthly stipends were not enough for her upkeep.Her situation was even made the more complicated when it turned out that no contracts were signed between her and the Mount Camel Fertility Centre” (2018)

24. Conclusions • ICA decreasing • Health care systems (including private facilities) improving • Global medical tourism on the rise • The new Frontier?