Surrogate motherhood: legal issues

Abstract

Surrogate motherhood is one of the most controversial issues of our time. The increase in infertility and the shortage of babies available for adoption, have provided an incentive for research in assisted reproductive techniques. Rapid advances in this field have caught the legal system unprepared in many ways. The object of this thesis is to investigate the legal aspects of surrogate motherhood. A background is provided by an in depth examination and analysis of the practice of surrogacy in foreign jurisdictions. For this purpose a selection of interdisciplinary, medical and juridical reports, court decisions and legislation is analysed. The surrogacy agreement is affected by principles of both public and private law. As the agreement is based on consensus between the parties, Roman Law principles of the law of obligations, provided a valuable point of departure in establishing a theoretical basis for the classification of surrogacy agreements. Having determined the nature of the agreement, the content is analysed with due regard to statutory and other relevant considerations, such as the boni mores, and submissions made regarding the enforceability and legality of such agreements. A surrogate mother agreement model is proposed and analysed in the light of existing South African law. The various ways in which surrogacy contracts may be breached are examined and recommendations put forward regarding possible delictual or contractual remedies. The legal relationship between the surrogate child and its gestational (birth) mother and her husband on the one hand and the intended parents on the other is investigated. The role of the courts in custody issues - related to surrogacy - is examined and recommendations put forward as to how they may be included in the process by determining the best interest of the surrogate child prior to artificial insemination. The civil and criminal liability of medical practitioners involved in assisted reproductive technology and specifically surrogacy are expounded. Key issues in the practice of surrogate motherhood are interpreted in the light of existing statutory and common law principles. Recommendations are put forward on these issues and a bill proposed for the regulation of surrogate motherhood in South Africa.