More Articles

Ethical Issues Related to Surrogacy

How to Address Legal and Ethical Concerns About Surrogacy in South Africa

If you plan on commissioning a surrogate to undergo IVF treatment to carry your child to birth in South Africa, it will also be important to consider the ethical issues related to surrogacy.

One such an issue is the right of the surrogate to terminate the pregnancy, considering that the child carried has a genetic link with you or your partner according to requirements of the Children’s Act of 2005. The law gives the surrogate mother the right to terminate the pregnancy based on medical reasons and after having discussed her intention with the commissioning parents without being liable for any of the costs associated with the surrogacy up to termination of the pregnancy.

The surrogate also has the right to do so for reasons other than medical, but can then be held liable for costs of the surrogacy up to the termination of the pregnancy. She is in a legally binding contract with you as commissioning couple, but may decide that she no longer wants to continue with the pregnancy because her family is in disagreement over the pregnancy or for any other reason.

It is a real risk that you, as commissioning couple, must accept and must prepare for because such a decision can have a devastating effect on your emotions and hope to conceive a child of your own.

Another ethical issue related to surrogacy in South Africa is the fact that at least one of the commissioning parents must provide the gametes for the IVF as at least one parent must be genetically linked to the child. A situation can exist where both partners are infertile or unable to produce healthy gametes for the invitro-fertilisation. This may leave a couple with no other choice than to adopt a child even after several years of fertility treatments.

Surrogacy cannot be done or commissioned for commercial gain. One can, therefore, not place an advert in the newspaper offering such services at a fee. The fertility clinic cannot charge the couple for locating a surrogate. However, with many fertility clinics in South Africa having databases of potentially suitable surrogates who are willing to be surrogates without receiving financial compensation other than for costs directly related to the surrogacy, couples in the country have the benefit of having professional assistance in locating a surrogate.

Another ethical issue to consider is the possibility of twins and even triplets for which the commissioning couple has not been financially prepared. In South Africa, however, strict protocol is followed to minimise the risk of such if not planned for. Such and many other ethical issues related to surrogacy can be discussed with an attorney specialising in medical and surrogacy law in South Africa.

Please note that the information in this article is of a general nature and not intended as legal advice. We strongly recommend speaking to our attorneys first before solely relying on the information to make a decision.