Pretoria - It is an offence for any person, including doctors, to artificially fertilise a woman without prior authorisation from a court, although there might be a motherhood agreement between the prospective parents and surrogate mother.
Health professionals who assist prospective parents and surrogate mothers – prior to the blessing of the court – would face criminal prosecution, the Pretoria High Court has ruled.
Acting Judge Raylene Keightley, dealing with an application by prospective parents to enter into a motherhood agreement with the surrogate mother, warned the aspirant parents and doctors that not adhering to the rules, could have dire consequences.
In this case the prospective parents only approached the court after the surrogate mother was already three months’ pregnant.
In terms of the Children’s Act, the parties have to approach the court before conception.
This is to safeguard the rights of all parties, but ultimately to protect the unborn child.
One of the consequences of not entering into a court approved agreement before conception, is that it would leave the child in legal limbo.
The prospective parents will have no say over the child, but will have to adopt it.
The surrogate mother will have the ultimate say over the child, as there would be no order in place and the child would remain hers.
Judge Keightley said this judgment should act as a strong deterrent to health professionals to proceed with extreme caution.
Also, to insist on an authorisation from a court before they agree to assist parties in the artificial fertilisation process.
The judge in this case did make the agreement between the prospective parents and the surrogate mother an order of court, as she found that the parties did not deliberately turn a blind eye to the law.
They had approached the court twice in the past regarding two prospective surrogate mothers, but things did not work out.
One of them in the end did not want to go through with it and the other could not fall pregnant.
However, the third prospective carrier, a mother of four, did fall pregnant with her donor egg and the sperm of the commissioning father.
This was after a verbal agreement had been reached between the parties, but before the court was approached.
The parties did not realise they had to first approach the court and thought they could do it anytime before the child was born.
The judge said artificial fertilisation of a surrogate mother is expressly prohibited until an agreement had been confirmed by the court, because many factors were at stake – personal and practical as well as legal implications.
Head of the Centre for Child Law at the University of Pretoria, Prof Ann Skelton, hailed the judgment.
“It recognises the importance of the legal requirement that commissioning parents should have their written agreements approved by a court prior to the surrogate pregnancy occurring. This is to make sure the agreement is legally sound and that there will be certainty about the potential child’s legal status once he or she is born.”
“The judge found that in exceptional circumstances, and where it is in the child’s best interests – a court can validate the agreement after conception of the child. However, the power of the court does not extend before the birth of the child.
“If a commissioning parent does not go to court to get approval until after the child is born, the court will not be able to approve the agreement at that stage. The parents would then have to adopt the child or obtain parental responsibilities and rights over the baby. This means that either way, the child will not be left in legal limbo.”
Skelton said the judgment is also a reminder to people considering surrogacy that it is important to consult a lawyer prior to embarking on a process of surrogate pregnancy.
“Surrogacy rules have to be strict to protect against abuse such as the exploitation of women. Also, to ensure the legal status of the child is clear from the outset in case any of the parties change their minds during the process,” Skelton said. - Pretoria News