Draft report: discussion

Meeting report

AD HOC COMMITTEE ON REPORT OF SA LAW COMMISSION ON SURROGATE MOTHERHOOD
23 FEBRUARY 1998
DRAFT REPORT: DISCUSSION

MINUTES
The Chairperson, Ms Jana, opened the meeting by thanking Ms Lebeko, from the Justice Department, for the hard work that she had put into compiling the final report. The report would be the last draft for members and they could voice their final recommendations.

The Chairperson said that she was not entirely happy with the format of the report. She found it too repetitive and thought it could be more concise. Other members, however, were happy with it and did not feel the need for a change.

The members spent the next two hours going over the technicalities in the report until Ms Verwoerd (ANC) suggested that a sub-committee be established, which would work on the editorial part of the report. She felt that time would be better spent discussing members’ recommendations. All the members agreed to that suggestion.

Referring to the content of the report, the Chairperson felt that "persons" (A(i) – p24) was too general and that the word "women" should be used so as to make it more specific. A long debate ensued between the Chairperson and Ms Verwoerd, who felt that it should not be changed as it could otherwise sideline gay couples. No real consensus was reached and it was decided to return to that point.

Regarding point (C), the Chairperson felt strongly about the need for a union to be present. All the members agreed and were happy with the current wording. Ms Verwoerd suggested that "surrogate mothers" and "commissions parents" should each have a sub-heading for clarity.

Ms Louw, from the South African Law Commission (SALC), wanted clarity as to when a woman could ask for the services of a surrogate mother. Would the services be requested when a woman was medically unable to give birth. Ms Verwoerd replied that it was when a doctor stated that there was no other alternative.

The Chairperson wanted to clarify the point that surrogacy directly impacts on the inability of a woman to have a child. Surrogacy was not centered around a man’s fertility. She stressed that this particular legislation was centered around the woman’s infertility. Ms Rabinowitz (IFP) agreed with the comments made by the Chairperson. She said that the main issue revolved around the woman, not the man.

Ms Verwoerd felt that the SALC’s report was not in line with the Constitution, i.e. it’s terms of reference in referring to couples. She stated that the committee had felt that the scope should be extended widely. Therefore the committee should not now be deliberately exclusive. The Chairperson stated that homosexual couples do not necessarily need to be infertile. Ms Gandhi (ANC) was in agreement with the Chairperson, as the debate was not about infertility per se, but about the ability of a woman to carry a pregnancy to full term. Ms Smuts (DP) stated that the issue is about surrogacy and it should not be stretched beyond by including homosexual couples. Ms Verwoerd was not willing to exclude couples. Dr Rabinowitz felt that references to ‘women’ does not necessarily rule out the other cases.

Ms Louw stated her concern about the meaning of ‘stable relationship’ (p 26). The Chairperson replied that the report referred to cases where there is a relationship and did not restrict surrogacy agreements to someone in a marriage or established relationship.

Mr van Heerden (NP) raised the issue of consent and he believed that it is absolutely necessary that the husband or partner’s consent was given. If there was no consent, the agreement should be invalid. Before leaving, Mr van Heerden fast tracked to page 30 (point VIII) and page 31(point HIII) and was of the opinion that a woman could not be penalised for changing her mind. The Chairperson response was that the issue was the contract and that one willfully entered into a contract.

Mr van Heerden queried the point that a surrogate could not be single (point IV (b) page 26). The Chairperson replied that this issue had been extensively debated, both in previous meetings and during their overseas workshops. All had been in favour of married women because they would have an established support system. When considering this issue one has to bear in mind the risks involved in a pregnancy and it was considered to be imperative that the emotional implications that are associated with pregnancy be understood.

Dr Rabinowitz felt that an absolute law about the experiences of most women (but not all women) was being made. She highlighted this view with the example of an unmarried sister who wanted to carry a child for her sister.

The Chairperson suggested that a time frame of six months (as is standard overseas) should be implemented for counseling and screening. All agreed.

Ms Verwoerd said that a distinction should be made between counseling and screening and that they need to be viewed in isolation. She also felt that there was a need to specify screening and counseling before and after the arrival of the baby and that, in addition, these processes should be monitored by different bodies.
Dr Rabinowitz would not support the setting up of another state body.

Ms Camerer (NP) stated that there was a need to specify the criteria for physical and psychological suitability. She also felt, with regards point E I (v) on page 29, that the interests of the surrogate mother should be taken into account.

The next point of contention was the issue of abortion and surrogacy. Ms Smuts strongly objected to the surrogate mother’s right to request an abortion on the grounds that the surrogate mother had contracted herself to have a baby and that she should not be able to renege on that so easily. Ms Smuts stated further that termination should only be permitted on therapeutic grounds. Ms Camerer was of the opinion that a contract could not override the constitution therefore it was still the absolute right of a surrogate mother to have an abortion. Ms Smuts responded that the signing of the contract is the signing away of rights, including termination. The Chairperson stated that the contract should provide for all eventualities therefor the issue of abortion should be stated in the contract. Ms Camerer said that a claim for damages should be made possible, but that one cannot take away women’s rights. In general it was felt that both the surrogate mother and commissioning parents should have the right to opt for an abortion. Therefor point H on page 31 should be omitted.

Dr Rabinowitz felt that, with regards to point J, a child should be entitled to have access to information about the surrogacy agreement. Ms Gandhi felt that this issue should be in line with the Adoption Act. All agreed.

The Committee ran of time and had to adjourn the meeting. On the issue of the effect of opening it up to homosexual relationship, the committee felt that further research needed to be done.