Surrogacy common, but unregulated

Johannesburg - When the Ferreira-Jorge triplets of Tzaneen in Mpumalanga were born thirteen years ago, there was a big commotion.

Paula, José and David were the world's first in vitro triplets. In addition, it had been the first time an egg had been fertilised outside the body and implanted into a third person. But it was the fact that their grandmother, Pat Anthony, gave birth to them which created most of the sensation.

Surrogate motherhood is news again with the birth of Nina and Lila - Doctor Susan Vosloo's surrogate twins. Her sister-in-law Trudie Vosloo from Johannesburg was the surrogate mother.

Although surrogacy rarely makes the headlines these days, it is a regular occurrence. In most cases it brings joy to couples who are unable to have their own children in any other way.

Dr Johan Schouwenburg of Medfem Clinic in Sandton treats at least one surrogate mother a month. Doctor Coen Groenewald and his colleagues of the Wilgeheuwel Hospital in Randpark Ridge, Johannesburg, are very cautious.

They have laid down criteria for surrogate motherhood - only women for whom pregnancy is physically impossible qualify. This includes women without wombs (some are born without it and others have undergone hysterectomies or the uterus is damaged) and women who have a disease which renders pregnancy life-threatening.

There are "grey areas", like when women have repeated miscarriages and the cause is unclear.

Surrogate motherhood is often done in secrecy, and the child is registered as the couple's own child.

Legally speaking...

"In Indian and black communities it is common practice within the family," said Ananda Louw of the South African Judicial Commission. Louw was involved when a report on surrogate parenthood was tabled in Parliament in 1994. She was also an advisor to the ad hoc committee which subsequently probed the issue.

This committee's final report was tabled early last year. It found that surrogacy should be a legal alternative for those people who cannot have their own children. In terms of the report a surrogate mother may not receive financial benefit from an agreement with the parents. Her legal, medical and other expenses pertaining to the pregnancy should however be covered. If women should advertise their services as surrogate mothers, the report would regard it as a criminal offense.

The committee proposed in line with the Constitution that surrogate motherhood should be available to every "competent person, irrespective of their marital status or sexual orientation."

However, the requirement was set that the parent or parents should be able to provide a "stable" home for the child and that surrogacy should be the last resort.

A further recommendation was that all parties involved in the agreement should be carefully selected and should receive counselling before and after the birth.

The report has still not been passed by the Justice Department, which has to adapt it into legislation. Before this happens no contract between the surrogate mother and parents is binding.

Existing legislation states that the woman who carries the baby is the legal parent and the couple for whom the baby is carried, have to adopt the child.


The ad hoc committee's report follows British legislation, which also stipulates that surrogate mothers may not advertise or receive money, except payment for "reasonable expenses".

This approach differs from most American states, which have "commercialised" surrogate motherhood by allowing surrogate mothers to advertise and gain financially from their services. For some women it has become a "career". The internet has a host of classified advertisement for surrogate mothers, next to those for ovum and sperm banks and surrogate and fertility clinics.

The issue is not regulated by the federal government, but by the states. Surrogacy is illegal in five states - surprisingly in the liberal states of New York and Washington as well.

Failed transactions

Between 2 000 and 4 000 surrogate babies are born in America each year. Only about 1% of surrogate mothers in that country refuse to give up the baby.

A British surrogate organisation, Childlessness Overcome Through Surrogacy, estimates that about 3% of all transactions fail.

Groenewald is not aware of any cases in South Africa where the surrogate mother refused to give up the baby.

Van Schouwenburg believes the proposed legislation would prevent this problem. Contracts concluded ahead of the pregnancy and binding for a year, would prevent the surrogate mother from keeping the baby.

"These contracts are in fact agreements arranged in good faith to protect the clinics involved and to create awareness among all parties of the implications surrounding surrogacy," Groenewald said.

Legislation would prevent the surrogate mother from making further unreasonable demands from the prospective parents when she is already carrying the baby. Such demands often involve money and the prospective parents usually comply from fear of losing their baby.

Since money could so easily become a weapon in the hands of the surrogate mother, Van Schouwenburg is sceptical about women who offer their services as surrogate mothers to fertility clinics.

He regards the best surrogate mothers as good friends or family members of the couple, someone they know and can trust. He has doubts about the proposed legislation as it has to take too many issues in consideration. "What happens in a case where the surrogate mother contracts HIV, smokes or uses alcohol after becoming pregnant or puts the baby's health at risk in some other way? Would the parents be able to sue her?"

Groenewald asserts that certain ethical standards should be set for doctors. Surrogacy involves in vitro fertilisation and implantation of the embryo - a process that could cost as much as R20 000 a time, from which unscrupulous doctors could harvest considerable sums of money.

Nobody thinks the legislation would result in a flood of surrogate pregnancies. However, surrogacy is such a personal and emotional issue that it would probably always be a last resort for childless couples.

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