Surrogate motherhood and assisted reproduction in South Africa : an analysis of selected constitutional and medico-legal issues

Abstract

The advancement in medical technology over the past few decades has brought hope to infertile people and same-sex couples to have their own families in circumstances where it would not have been possible for them otherwise, except through adoption. These medical technological advances have pushed difficult ethical, social and religious issues to the front as society tries to adjust to new formulations of what constitutes a family. The use of assisted reproductive technologies (ART) and assisted reproductive procedures, especially in the context of surrogate motherhood, raises a range of medico-legal and constitutional issues concerning the parties involved in a surrogate motherhood agreement, namely the commissioning parent(s); the surrogate mother (and her partner, where relevant), and the child to be born following the agreement. Chapter 19 of the Children’s Act 38 of 2005 was enacted to, not only protect the best interests of the commissioned child, but also to provide legal clarity regarding the rights and responsibilities of all parties involved in a surrogacy arrangement, including the legal status of the child born as a result of surrogacy and artificial fertilisation. Although different High Court judgments provide some guidance on the scope and type of information that should accompany an application for the confirmation of a surrogacy agreement to enable the court to make a decision on this matter, many gaps and uncertainties remain. Some of the provisions in the Children’s Act were recently constitutionally challenged because of critical human rights concerns. Urgent legislative intervention is required to address these lacunae. This thesis proposes that regulations be enacted to chapter 19 of the Children’s Act to close the existing regulatory gaps and to assist persons seeking to conceive a child via a surrogacy agreement to comply with the provisions of chapter 19. The law is notorious for often lagging behind the constant advances in medical technology and changes in society, most evident in present times in the context of surrogate motherhood and artificial fertilisation. This thesis also considers what the proposed regulations to the chapter 19 of the Children’s Act should consist of with reference to judgments regarding chapter 19 and the Constitution of the Republic of South Africa, 1996. The best interests of children are of paramount importance in all matters concerning children, entrenched in section 28 of the Constitution. This thesis advances that because High Courts have the responsibility to ensure that surrogacy agreements are in the commissioned child’s best interests, this obligation will best be dispensed with by the enactment of much needed regulations. The thesis also demonstrates that although South Africa has a comprehensive legal framework regulating surrogate motherhood and artificial fertilisation compared to the United Kingdom, Canada and India, some instructive examples may be taken from these jurisdictions in closing the existing regulatory gaps and ambiguities.