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AD HOC COMMITTEE ON REPORT OF SOUTH AFRICAN LAW COMMISSION ON SURROGATE MOTHERHOOD (NATIONAL ASSEMBLY)
13 OCTOBER 1997
DRAFT REPORT: DISCUSSION
Ms Louw, from the South African Law Commission, gave a briefing on the South African Law Commission report and members were encouraged to comment on issues that they regarded as problematic. On page 149 of the report Ms Louw said that a possible problem may arise where surrogacy is limited to married couples.
Ms Verwoerd, ANC, commented that that section should be scrapped due to its unconstitutionality. Ms Smuts, DP, asked whether an adoption ruling had ever been challenged in court and could the constitution rule differently on that issue.
Mr Van Heerden, ANC, felt that it was not up to the committee to decide whether it was constitutional or not. There was not time or resources to thoroughly answer the question. However, Mr Van Heerden did add that the committee should make a note of the problem in its recommendation.
Ms Verwoerd reiterated that in the case of surrogacy, all people should be allowed to adopt. This option should not be limited to married couples only as that would be discriminatory.
Ms Jana, chairperson, felt strongly that the commissioning parents should be in a long-term relationship.
Ms Nzimande agreed with the chairperson. She said that all legal loopholes should be covered so that they focus on the child's interest.
Mr Van Heerden wanted to know what would happen if the commissioning parents died.
Ms Verwoerd said that it went back to the issue of married versus unmarried. She did not have a problem with people who have a stable relationship as that would be part of the screening mechanism. She added that a stable relationship should not be limited to a mother and a father.
The chairperson said that she had no problem with a gay relationship as long as there was a relationship. She said that the screening mechanism should include doctors, lawyers, psychiatrists and social workers. She also felt that the issue, which restricts the number of children the commissioning parents could have, should be made explicit.
Ms Louw agreed with the comments but explained that the issue was very new at the time when preliminary research was conducted. As in the previous meeting, the chairperson repeated that the commissioning couple should not have any biological children of their own.
Ms Verwoerd raised her concern of people who have had no access to adoption, for example, due to age. They might think that they have a better chance of adopting through surrogacy. She also stated that points 6.11 - 6.13 of the report work had a marriage concept in mind. That section needed to be rewritten. The chairperson responded by suggesting that they only focus on the principles, not details.
Ms Louw pointed out that only the full surrogacy definition was used in clause 8.2 (47). However the most important issue that needed to be addressed was whether the gamete of the surrogate mother had to be used or not. The chairperson preferred the surrogate mother's gamete not be used. She highlighted the Baby "M" case in the USA, where the surrogate mother wanted to keep her child.
Ms Verwoerd expressed her worry about over-regulation. She believed that only in extreme cases should the egg of the surrogate mother be used. The chairperson then told the committee that whilst doing their domestic study tour they should find out about the South African customary traditions, where surrogacy arrangements were often made within families. People, especially in the North-west and Northern Province, did not want excessive regulation by the government.
Ms Louw agreed that it was preferable not to use any eggs of the surrogate mother. However, if the situation should arise where her egg is used, she suggested that the British model be used whereby the surrogate mother had no legal protection in terms of claiming her child after the six-week period.
On this point, Ms Smuts wanted to know what was meant by the six-week arrangement. The chairperson explained that it was the period where the surrogate mother could decide whether to keep the child or not. Ms Louw brought up the question of financial gain on the part of the surrogate mother. She asked whether surrogate mothers should be paid and should agencies be allowed. The chairperson answered the question by saying that from the study tours to the United States of America and the United Kingdom (UK), the group learned that in the former the consensus was that the surrogate mother should receive some payment, whereas in the UK, such payment was totally opposed. The chairperson personally felt that no gain should be made from surrogate motherhood.
Ms Verwoerd stressed that the two need to be separated. However, all expenses had to be covered, including medial expenses and compensation for loss of earnings. The best option would be to keep surrogate motherhood non-profitable. The issue of personal gifts should not/ cannot be controlled and was allowed. If the commissioning couple decided to give the surrogate mother a house, for example, that was their right. That could not be regulated.
Mr Van Heerden stated that when the issue of agencies was raised, he felt that it would be easier to allow people to work through agencies as it would be easier for the state to regulate such agencies. On that point, the chairperson raised her concern of agencies making huge profits, as in California. Mr Van Heerden felt that huge profits could be limited by letting agencies pay for the expenses.
Ms Nzimande was concerned that it might be discriminatory towards poorer people, as only the wealthy could afford the price that an agency might ask for its services. Ms Verwoerd then suggested that there should be both private and state agencies. The latter would avail its services to poorer people. She still expressed her concern about whether commercialisation could be controlled. She did add that it would be difficult to do so. The chairperson said that the moral issue would be in the hands of the agencies. The conduct of the agencies in the UK seemed to be well intact. Ms Louw said that the main job of the agency would be to provide surrogate mothers. The issue of match-making would still need to take place.
Ms Verwoerd commented that the practice of giving money for eggs should be outlawed. She suggested that medical control boards could be responsible for match-making. The chairperson stated that at the moment in South Africa, commissioning parents found their own surrogate mothers. Ms Smuts felt that administrative control was necessary to avoid possible "incessant" insemination, especially if a person did not know his/ her background.
The chairperson then read out an article which had appeared in the Cape Times, 10 September 1997, about an incident in the US where a child was officially declared an orphan after the father divorced the commissioning mother and was not required to pay any maintenance costs. All members agreed that provisions needed to be made to prevent such an event from happening. They felt that the paramount issue of acting in the interest of the child had been sidelined.
Ms Verwoerd stressed the point that a surrogate mother need not be married as long as she had had a baby. Ms Louw commented that in clause 8.2.11 it stressed the importance of a written consent. Consent from the partner was especially important if the surrogate mother was married or had a long-term relationship. The chairperson supported the view that an agreement was important, especially if the surrogate mother was married, as a pregnancy impacted on a relationship. Mr Van Heerden wanted to know what would happen when a single surrogate mother decided to get married. The chairperson felt that the surrogate mother and her partner should discuss the issue. The surrogate mother could not renege from an agreement that she had willfully signed simply because her husband-to-be did not want her to act as a surrogate mother. The chairperson also reminded the committee members of the three available options:
a) Normal adoption: once the baby was born, the adoption process took place
b) Fast-tacking adoption (this occurred in the United Kingdom)
c) Direct parenting: when the child was born, it was immediately written under the commissioning parent's name.
Ms Verwoerd felt that the onus on clause 8.2.13 should be on the medical practitioner, that is, when it was performed without a court order. She also felt that the following issues should be addressed in the surrogacy contract: situations where parents decided to get a divorce, if they died or if the child was born with abnormalities. The chairperson emphasised that the surrogacy contract had to be an order of court so that it would be effective and protect the child. Mr Van Heerden wanted to know whether the contact took into consideration a situation where, for example, parents get divorced and remarry and then one of the spouses does not want the child. The chairperson answered him by saying that the court was the upper guardian of and for the child.
Abortion was the next issue the chairperson wanted to discuss. Ms Louw informed the committee that in the United States of America abortion was permissible for a surrogate mother as it was regarded as her right to bodily integrity. Ms Smuts said that such a right given to the surrogate mother shocked her. She felt that it should be revoked (except in the case where the mother's life was in danger) as it would undermine the contract. The surrogate mother should not be allowed to have an abortion simply because she did not want to be pregnant anymore.
Ms Verwoerd added that a fallout should be prevented between the commissioning parents and the surrogate mother as the latter might abort the child out of revenge. The chairperson agreed that some control was necessary, as the surrogate mother should not be allowed to merely decide to have an abortion. Ms Louw pointed out that the issue of abortion in surrogacy had not posed any problem in the United States of America or the United Kingdom, as surrogate mothers in both countries tended to be pro-life supporters.
Ms Nzimande wanted to know whether the abortion question should be spelt out in the contract. The chairperson thought that it would be best not to include it. Ms Louw informed the members that the bigger problem was surrogate mothers wanting to keep the children and not abortion. Ms Smuts agreed that the issue of abortion must not be included in the contract. Abortion should only occur for medical reasons. Ms Verwoerd said that should the surrogate mother have an abortion, the commissioning parents would need to be informed. Ms Louw asked what if the surrogate mother decided to have an abortion. The chairperson felt that the surrogate mother should then be held liable.
The committee went back to point 2(c) on pg.163 and stated that they believed that a surrogate mother must live in South Africa, though she did not necessarily have to be a South African, in order to control the situation. The last point of the report the committee discussed was point 8.3(5). The South African Law Commission felt that the advertisement of surrogacy should not be allowed. Mr Van Heerden pointed out that there was a difference between advertising and communication. He felt that the latter should be encouraged. Ms Louw stated that a woman should not be discouraged from being a surrogate mother through age restriction or be stipulated that she should have been married for a certain number of years.
Jane Lebeko, from the Justice Department, then discussed the working document. She said that since members have agreed that age restriction should not be allowed, C (b) should not be included. Also, the option of having more than two surrogate pregnancies should be given to the potential surrogate mother. C (e) also should not be included, then. Ms Louw clarified that it was in line with overseas opinion, though they found that in general, women did not have more than two or three surrogate pregnancies. Ms Verwoerd suggested that those issues should be left open and not mentioned. She also stated that D (1) had to be changed, as it was not necessarily a fertile problem, as a commissioning mother might be unable to carry a child due to biological reasons. Ms Gandhi (ANC) mentioned that other departments, such as Health and Justice, should also be included in these discussions.
Ms Verwoerd asked whether there should be a standard surrogacy contract or individual contracts which would have to be drawn up. The chairperson responded by saying that such a contract needed to be made available to all. Individual contracts would prevent this from happening as not all people could afford a lawyer. She believed that a standard form should be provided in the Act. She added that E (II) would be unnecessary as provisions have already been made in the South African Law Commission report.
Ms Lebeko highlighted the point E (VII) and wanted to know the opinion of the committee. The chairperson felt that it needed to be made broader and include all eventualities, for instance, the death of commissioning parents, divorce and abnormalities.
Ms Malan was of the opinion that the contract should bind the commissioning parents to all eventualities. Ms Gandhi wanted to know what would happen when a commissioning mother discovered during the pregnancy that the child was abnormal and requested the baby to be aborted, while the surrogate mother was against the abortion. The chairperson felt that provision had to be made for that.
Ms Lebeko stated that when any conflict arose between the two parties, the court should resolve the dispute. The chairperson said that the provision made by Ms Lebeko should be put in the contract, although the difficulty would be in wording it. Ms Smuts suggested that the various issues, which the parties must agree upon, should be listed. Ms Gandhi asked the committee what would happen if multiple births occur. Ms Smuts mentioned that that was covered under all eventualities.
Ms Nzimande asked what about the issue of non-disclosure of ailments on the part of the surrogate mother. The chairperson responded by saying that the legal system would take care of that. Also, it would probably become clear in the medical tests. She also wanted to discuss the issue of informing the child as well as visitation rights for surrogate mothers. In Los Angeles, it was found to be a healthy experience and not detrimental to the child.
Ms Malan stated that in the United Kingdom such rights were non-existent. Gandhi left that the issue should be left open to the commissioning parents and surrogate mother. They should decide what arrangements they want to settle for. It should not be stipulated in the contract beforehand. Ms Smuts asked whether it would change the situation if the surrogate mother provided half of the gametes. The chairperson recognised that a question mark needed to be put on partial surrogacy with this regard. She said that with full surrogacy it should be left open. Ms Smuts commented that it would be good for commissioning parents to know that such as possibility existed. Ms Louw then asked whether partial surrogacy should not be regarded as adoption. Gandhi clarified that in an adoption case, once the birth mother signed the contract, relinquished all rights to the child.
Ms Louw expressed her concern about the position of the court in the screening process. She wanted to know who would be involved in the process; the court or another body. The chairperson suggested the medical professionals. That was the route taken by the United Kingdom, whereas in the United States of America, agencies did the screening. Ms Louw stated that the committee needed to discuss that issue further. The chairperson repeated that in the United Kingdom, hospitals had screening panels whereas in the United States of America, agencies did the screening. She said the system worked well in each country. She believed that South Africa needed to be attached to the hospital units. Ms Smuts, on the other hand, felt that private bodies should be allowed to form screening panels. Ms Louw wanted to know who would make the final judgement. The chairperson said that panels would do the selection and screening and established whether a person was suitable or not.
Ms Malan suggested that a professional body, possibly established by the Health Department and other departments, such as Justice and Welfare, should stipulate the norms. There should be panels throughout the country that would make decisions or recommendations and the court would then confirm the decision. The chairperson was satisfied with that suggestion. She felt that an independent body for surrogacy was necessary as well as the need for a pre- and post screening.
Ms Lebeko wanted to know who would appoint the professional body. The chairperson thought that the appointment process could be dealt with at a later stage. Ms Gandhi wanted to know whether a clause in the contract should say that all should be subject to the interest of the child. The chairperson felt that that was unnecessary, as it was an overriding factor that was upheld in the constitution. She suggested that F (i) and (iv) should be placed together. She then suggested that the issue of handing over the child to the commissioning parents be discussed in the meeting.
Ms Gandhi stated that with adoption, the child was handed over immediately to prevent the mother from bonding with the child. She furthermore stated that each adoption case was regarded as unique. She felt that the committee should not stipulate when the child should be handed over. She believed that the involved parties should make that decision. The chairperson pointed out that 13(b) should refer to partial surrogacy. In the South African Law Commission report, the clauses on page 152 are under full surrogacy.
On the issue of how the legislation should be written, the chairperson felt that the South African Law Commission should follow the format of its report, i.e., deal with each section and state what the committee recommends. She stated that the members wanted to use the same format as the abortion report of the South African Law Commission and incorporate the overseas report.
The chairperson clarified once more that fast track adoption would apply only in partial surrogacy. The surrogate mother would also be given a period of six weeks in which to decide whether she wanted to part with the child or not.
Ms Malan's expressed her party's unhappiness with allowing gay couples to adopt a child through surrogacy. Ms Louw acknowledged that limited studies had been done on the effect of the child who had been raised in a gay household. The chairperson reiterated that it was an important issue as gay couples might make more use of the surrogacy system that other groups. With that statement the meeting ended.
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