Is surrogacy safe in SA?


Surrogacy has been getting a bad rap in the news lately. A recent report calls into question not only the whether surrogacy is moral, but also whether some prospective parents even have a right to it.

This latest report in News24 tells the tragic tale of baby Gammy, born to a surrogate mom in Thailand and rejected by his biological parents in favour of his twin sister. The parents in question, an Australian couple, claimed to have had no knowledge of Gammy’s existence until the media got hold of the story. They are said to have left Thailand with Gammy’s sister, having paid the surrogate mom a fee, the amount of which differs from $9000 to $16000 depending on the report you read.

Read more about surrogacy

Gammy has Down’s Syndrome and a heart defect. The surrogate mom claims that the couple asked for her to abort Gammy when they found out about his condition, a claim the couple deny. The couple initially argued that they had no knowledge of Gammy’s existence, but later confessed that they left him behind because they were told that he would die within a day of his birth.

One of the latest developments is the news that the biological father in question is a convicted sex offender who served a jail sentence in 1998 for “indecently dealing with a child under the age of 13” according to News24.

"Fuzzy" laws

The laws governing surrogacy in Australia and Thailand are complex and it’s difficult to gain a clear picture of whether it was legal for the transaction to have taken place in the first place. In Australia, it’s illegal to pay a surrogate, leading couples to seek surrogacy services beyond its borders, reports the BBC.  One report calls Thai surrogacy laws “fuzzy” and states that the surrogate mom could be arrested for being a surrogate to a foreign couple. The same report calls Thailand “one of the most unregulated locales for commercial surrogacy”.

What about surrogacy in SA?

So what does the law governing surrogacy in South Africa say? According to the Surrogacy Advisory Group, surrogacy is “100% legal in South Africa”. It is governed by the Children’s Act of 2010 and states that

•    the high court has to grant permission for the transaction to take place,
•    the transaction cannot be for “commercial gain”, which means that the surrogate can only claim for loss of income and medical expenses,
•    surrogacy can only take place between surrogates and couples who live in South Africa.

South African law also requires certain background checks to be undertaken before the surrogacy contract is approved. In Thailand, no background checks are conducted on commissioning parents.

No background checks for potential parents or surrogacy candidates

This begs the question: Would a psychological and social worker’s report on the commissioning parents, such as those required by South African law, have prevented the Australian couple from undertaking their surrogacy contract in Thailand in the first place because of the husband’s prior conviction? Should it have? South Africa adoption law requires similar background checks. There are, of course, no such checks for couples able to conceive on their own.

Gammy’s story is messy and problematic and it could be argued that the inclusion of the husband’s prior conviction shifts the debate from the realm of who should care for Gammy to whether the Australian couple have a right to be parents at all.

Disclaimer: The views of columnists published on Parent24 are their own and therefore do not necessarily represent the views of Parent24.

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