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AD HOC COMMITTEE ON REPORT OF SOUTH AFRICAN LAW COMMISSION ON SURROGATE MOTHERHOOD (NATIONAL ASSEMBLY)
15 SEPTEMBER 1997
The chairperson, Ms Jana, started off the discussion by saying that guidance was needed from members on recommendations that would be included in the final report. Ms Verwoerd (ANC) felt that there was no need to send the report back to the South African Law Commission (SALC). She believed the committee handled the issue better than the SALC. She said that there was no need for any further investigation and the report should go straight to cabinet, otherwise it would be delayed further. The chairperson responded by saying that there would be opportunities for further hearings once cabinet sent the report to the Justice Committee, which would then go through the normal procedure of formulating the Bill, including public hearings.
Ms Jane Lebeko of the Justice Department gave a briefing on the relevant legislation that pertained to the issue and included the following acts: Human Tissue Act (1983), which gave the meaning of Artificial Fertilisation with Section 19 focussing on the prevention of commercialisation. That section was amended to accommodate artificial insemination. Section 28 authorised institutions to receive payment. The Child Care Act (1983) gave a definition of marriage and section 17 specified qualifications for adoption. At that point the chairperson said that there was a need for further explanation of Section 17 as it was relevant to the discussion. Ms Lebeko replied that that section clarified who may adopt and also the issue of consent when it came to adoption. Ms Gandhi (ANC) wanted to know what would occur when consent was not given. The chairperson responded by saying that surrogacy would be in the form of a contract. Ms Lebeko continued with the briefing. Section 20 dealt with the effects of adoption. The Children's Status Act dealt with the status of "extra-marital" children. Section 5 dealt with the issue of gametes of parents for artificial insemination. It stated that the mother who gave birth to the child was the legitimate mother, irrespective of where the gametes came from. The chairperson mentioned an example of the Tzaneen children whose grandmother gave birth to them. They were born before that law was amended; otherwise their grandmother would have been their legitimate mother. The chairperson asked Ms Lebeko whether there was any special prerequisite for birth registration. Ms Lebeko replied that the person who was in charge of the child (not necessarily the biological parents) had to register the child within 30 days of its birth. The chairperson wanted to know what would happen if adoption took place after the first 30 days. Ms Gandhi said that the child would have to be deregistered and then reregistered. She also mentioned that in the statutes it was stated that the child had to be registered under the father's family name. The chairperson responded by saying that that was an issue of contention and the committee would have to look deeper into that. Ms Lebeko briefly returned to the Human Tissue Act and stated that it had no negative or positive impact on surrogacy. The position remained the same. At this point Mr van den Heever (ANC) wanted to know what document Ms Lebeko was referring to. The chairperson said that it was a compilation of acts/ legislation that would have an impact on the surrogacy issue. She also explained to Mr van den Heever that the committee had decided to start the process of writing the final report, which would subsequently be sent to cabinet as the committee felt that here had been a thorough investigation. The committee would write its recommendations in the final report. She further explained that the committee had three reports: 2 interim reports and 1 overseas report. The report would include the committee's recommendations and those from other groups (in this case the SALC) that the committee had worked with. Mr van den Heever expressed his concern about the quality of the report that would go to cabinet. He said that it had to be a clear and concise document as the current interim report was insufficient. Amanda Louw, from the SALC, felt that the state law advisor should be brought on board. It was difficult for cabinet to make a decision as they have done no research and it was difficult to send documentation without knowing how it was going to look. Ms Verwoerd said that the report should make clear suggestions. It also needed to highlight the viewpoint of each party. It further needed to clarify the issues that were affected and point out potential problems that might be encountered with certain legislation. The chairperson said that the committee would not present a draft bill but rather add on to what the committee thought was needed as well as make comments on the draft bill.
Ms Lebeko told the committee that Mr de Lange, from the Justice Department, had made a summary on the legal aspect of the issue. The following aspects from the constitution was then looked at: Equality section (9) and (12), Freedom and Security of person (section 15), section (28) on Children and section (39) on the interpretation of the Bill of Rights. Regarding the equality issue (section 36), the chairperson commented that even the USA had not been able to successfully deal with that issue, including the age factor. She asked what would happen about cultural or religious rights. Ms Louw, from the SALC replied the legislation did not apply to customary law. There would be a need to look at the issue of surrogacy in customary law. SALC is currently not looking into that. The chairperson felt that at some point that would be necessary, that is, the issue of harmonizing customary and common law. Ms Malan (NP) reported that the Ad Hoc Joint Committee on Status of Women was currently discussing the issue of the status of women under customary law. Ms Verwoerd said that the Child Status Act could become controversial or problematic in surrogacy. The committee would need to identify the key issue. The chairperson then wanted to know if there was a need for legislation. Ms Malan and Verwoerd both agreed that legislation was very important. The chairperson then asked when type of surrogacy would be needed, full or partial? In South Africa partial surrogacy was most commonly practiced, that is, the ovum of the surrogate mother was used. During trips abroad the committee learned that both in the UK and the USA there was a tendency to lean towards full surrogacy. Partial surrogacy increased the risk as the mother had a genetic link if her ovum was used. Verwoerd wanted to know if the committee wanted minimum legislation or legislation to the extreme. She said that possibly the view should be expressed that full surrogacy was preferable given the complications that came with partial surrogacy. However both needed to be accommodated. She also pointed out that people might turn to surrogacy because of problems encountered in adoption. Hence the committee should look at the constitutional right to have a family. The chairperson reiterated that surrogacy was specifically directed to a genetic link as there was no desire to create babies for adoption. Ms Louw stated that the type of surrogacy was closely linked with the status of the child. Partial surrogacy would be a problem as it could be regarded as "fast-track" adoption. With full surrogacy at least there would be no link. The chairperson said that the reason for legislation would be to obviate adoption. Partial surrogacy might complicate the issue. Would the status of the child be affected if the mother's egg was used? Verwoerd claimed there would be a need to look at the contract issue. How would one deal with breach of contract? Gandhi said different procedures would be needed for full and partial surrogacy. The chairperson took the discussion further by asking the committee to focus on the commercial side of surrogacy. She asked whether there should be payment for surrogacy. Also what about medical expenses. Should the surrogate mother be paid for having the baby? She said that the United Kingdom had banned it and in the USA, it differs from state to state. The committee visited a Californian institution that made a profit and paid the surrogate mother. Ms Louw interjected by saying that there were two aspects to what the chairperson mentioned, one was commercialisation and the other was agencies. She felt these two issues should be kept apart. Gandhi felt that agencies should be limited in South Africa and the chairperson felt that there was a need to prevent non-South Africans from setting up agencies. Ms Malan expressed that she was against commercialisation but felt that there was a need for some kind of payment. Ms Verwoerd was also against commercialisation and felt that there should be no payment for giving birth. There should, however, be compensation for the jobless, maternity leave and provisions need to be made for insurance policies. The latter should be stipulated in the contract. She felt there was a need for experts in this field. It should not just be handled by gynaecologists. In place of agencies there should be a place where all the legalities occur, possibly a state agency. Surrogacy went beyond just the nine-month period as it could be up to two years. The chairperson commented that private agencies would become costly and only available for the wealthy. There was a need for centres that would be provided by the state to make it affordable to all. She also said that there was a great fear of international agencies exploiting the field in the United Kingdom and the USA. Would it be agreeable to restrict such agencies to South African citizens only? Verwoerd asked what if the person was a non-South African but was married to a South African. The chairperson responded by saying that there was a need to look at the definition given by Home Affairs on what a South African citizen entailed. She went on further to say that the contract must be made an order of court before surrogacy could begin. She asked Ms Lebeko if she could check whether it was an order of court. The reason it should be made an order of court was to make it an effective agreement. Ms Louw added that there was a need to investigate whether it should be a panel. Ms Verwoerd said that in the legislation a draft contract should be made. She told the committee that care should be taken in making another court action as the courts were overloaded already. The chairperson said that there was a need for a standard contract processed through family institutions. People would then need to appear in front of family courts. In the USA, the agencies make the contracts. Ms Louw added that provision had to be made for both monetary and emotional compensation. Ms Verwoerd pointed out that it would become a sticky issue when it came to unmarried mothers. The chairperson said that some restrictions were necessary, for example, the age factor, unmarried mothers, surrogate mothers should have had other children already and the number of times she can act as a surrogate mother. She recommended that the surrogate mother must have previously given birth to her own child so as to minimize the risk of the surrogate mother becoming too attached to the child. The commissioning mother must not be able to have any other children. Another issue Gandhi raised was the issue of confidentiality. Should the child be informed about his/ her circumstances? Verwoerd agreed with the fact that the surrogate mother had to have a successful pregnancy before she gets involved in surrogacy. The issue of marriage, however, might create constitutional problems. Shilubana (ANC) felt that the husband of the surrogate mother should be involved and must give his consent. Mr van den Heever felt strongly about the fact that the husband must give his consent as well. Gandhi wanted to know about the criteria for the commissioning person. The chairperson replied that it must be the final resort for the person and not when she is still able to carry a child of her own. She asked the committee to think about when the person has had a child of her own already. Verwoerd replied that the big issue was being married or not. The screening of a family was not for the committee to judge. Another issue the chairperson brought up was the age factor. What if a 70 or 80 year old woman wanted a child? Verwoerd said that in such a situation the best interest of the child would need to be taken into account. The chairperson then asked whether there should be sanctioning; what about the issue of abortion and whether commercialisation should be made a criminal matter. She also said that there was a need to look into the financial position of both the commissioning and the surrogate parents, the event of the death of the commissioning parents, if the child is deformed or retarded, the definition of marriage and the rights of the child. The latter included visitation rights as well as information about the circumstances under which the child was born. Verwoerd added that with customary law the definition of surrogacy may need to be redefined. Gandhi wanted to know about the issue of inheritance. Verwoerd thought that there might be an act that governs that issue. The chairperson said that it was the Adoption Act. Also she added that the committee needed to look at what would happen if the surrogate mother refused to hand over the child to the commissioning parents. Verwoerd suggested that something be drafted on behalf on the committee. The chairperson said that Ms Lebeko and Louw should draft it. The chairperson hoped to set aside at least a half a day for discussion the next time the committee met as the issue was very complex.
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