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Controversies Surrounding Commercial Surrogacy Agreements

The Child Protection Act of South Africa prohibits surrogacy for commercial purposes. Surrogacy agreements must first be approved by a High Court of the country before fertilisation can commence. Failure to get the confirmation means that the agreement is void and the surrogate becomes the legal parent of the child.

The South African laws are rather strict regarding surrogacy agreements, which should meet specific requirements. As such, according to a spokesperson from the Adele van der Walt law firm, people seeking surrogacy as an alternative to adoption should get legal guidance before they contact a volunteer surrogate as to avoid pitfalls.

In South Africa the gametes of one or both commissioning parents must be used in the fertilisation. The commissioning parents must reside in the country at the time of signing the agreement and they must meet the psychological requirements. They should also be able to provide proof of their infertility or inability to carry to full pregnancy and delivery.

The surrogate must reside in South Africa at the time of signing the surrogacy agreement and must also meet the psychological requirements. She must furthermore have at least one living child of her own and needs the consent of her partner before she can enter into a surrogacy agreement. She should at least have given birth successfully once before. These and many other requirements often make it difficult for commissioning parents in South Africa to follow the surrogacy route to getting a child of their own.

Proposers of commercial surrogacy argue that restrictions should be lifted to allow for an exchange of money for surrogacy beyond the currently allowable compensation for expenses. If one, however, looks at countries where commercial surrogacy is allowed, the picture seems grim. Georgia, Thailand, India, and several states in the USA allow for commercial surrogacy.

The commissioning parents may have easier access to surrogates, who are willing to go through the process in return for money, but the surrogates are often desperate people that will do anything for money. Studies have shown that these women are sometimes exploited by brokers and agencies with little concern for their health.

The commissioning parents agree to have other babies born from the surrogacy adopted if they don’t want more than one child. In many instances, the surrogates give birth to triplets and the other babies are then placed on the market for adoption. Even this practice is scary as the children can easily land up at abusers, organ harvesters or traffickers.

News reports have shown that some of the so-called surrogates in the countries mentioned are trafficked for the purpose of surrogacy. The brokers and unethical parties make a lot of money in the process while the women get paid little or nothing. Some of the surrogates deliver babies up to eight times and they are often also forced to deliver by means of Caesarean section. The physical and emotional strain put on a woman’s body when having to give birth so many times can have serious medical repercussions for the surrogate.

In addition to the controversies surrounding serial surrogacy in the lower income countries, the issues surrounding the rights of the child should be considered. In one of the recent controversies a couple couldn’t get a passport for their newborn to get to Japan.

With several unethical practices already a problem across the globe, South Africa is one of the few countries where such exploitation is still hindered by the law. Given the possible outcomes of commercialisation of surrogacy, one can be thankful for laws that strictly govern surrogacy in the country.

Though compensation is allowed for surrogacy in South Africa, it’s limited to reasonable expenses such as lawyer and medical fees as well as compensation for loss of income during the pregnancy. One may argue that it limits the pool tremendously, but the rights of the surrogate and the child to be born must also be protected. There are other ethical issues such as the right to termination of the pregnancy and issues regarding the future of a twin baby if the parents only want one child that must be discussed before a person enters into any form of surrogacy agreement.

It’s important to discuss the legal and ethical issues with a reputable medical lawyer such as offered by Adele van der Walt Inc. before making any decisions regarding surrogacy.