Pretoria – Under no circumstances should money be exchanged for surrogacy other than the payment of costs incurred directly related to the birth of the baby.
Gauteng High Court, Pretoria, Judge Ronel Tolmay, said surrogacy was strictly regulated, not only in South Africa, but also internationally. This was to protect the public against unscrupulous people who may abuse vulnerable people.
Judge Tolmay noted there were strict guidelines in place, which would be enforced by the courts to avoid commercial surrogacy.
“I am alive to the fact that commissioning parents are in a difficult situation when they start looking for a potential surrogate and can’t find some from their circle.
"It is this need that creates space for services provided by agencies and individuals.”
These remarks by Judge Tolmay were made during two separate applications by prospective parents, who wanted the court to give them its stamp of approval regarding the agreements they had with potential surrogate mothers.
A court, in all cases of surrogacy, first had to confirm the surrogate motherhood agreements.
Without this, the agreement would be illegal and the baby remain that of the surrogate mother.
Both unrelated cases involved the same woman who offered a surrogacy facilitation service online. This woman, as well as the other parties involved, may not be identified in terms of a court order.
She is referred to as the “Florence Nightingale of surrogacy” and people she had assisted in the past, said her services were invaluable.
The problem, however, is that in both cases the woman, only referred to as Mrs S, invoiced both couples for R5000 for “services rendered”.
Mrs S made it clear that the money wasn't for introducing the couples to the surrogate mothers, but for other expenses such as assisting them through the surrogacy process.
She stated that she was an expert in this regard, as she had acted as a surrogate mother six times during the past 11 years.
Mrs S said without her assistance, commissioning parents would have to find a surrogate mother themselves. This was something that was very difficult, she said.
“At the heart of the problem that arises in these two applications, is that commercial surrogacy is unlawful and payments are limited to those specifically provided for in the Children’s Act. The objective is to protect people who are involved in surrogacy arrangements,” the judge said.
It was argued on behalf of Mrs S that her agency was not involved in the kind of social ills which the law aimed to prohibit.
According to her, the law was aimed at preventing payment in money or in kind to the surrogate mother.
But Judge Tolmay said commercial surrogacy entailed much more that direct payments to these mothers. “There could also be third parties involved who could benefit financially from the process.
The judge said while it was true that it was difficult to find surrogate mothers, the solution may be if a regulatory framework was created which may also include a possible data base of potential surrogate mothers. “If this database is properly regulated, the possibility of abuse can be eliminated. Until that is done, similar situations as we encounter here, will arise.”
But for now the law is clear that no money may exchange hands, other than paying for certain expenses which are clearly stipulated in law.
The judge declared the facilitation agreement between the prospective parents and Mrs S unlawful.
But she did endorse the surrogate motherhood agreements as being above board.