A surrogate mother’s post-birth contact with the family formed through surrogacy: a missed opportunity for South Africa or opening pandora’s box?

Abstract

This dissertation assesses the suitability of South Africa’s current framework on post-birth contact in surrogacy law and explores whether it adequately protects the interests of all parties to the surrogacy agreement. This assessment reviewed the current legislative and practical framework, and then compared it to the Verona Principles’ best practices and the position in the United Kingdom, United States and Canada where post-birth contact practices occur. The assessment found that the current framework has several deficiencies. Its law as contained in section 297(1)(d) of the Children’s Act erroneously creates a default position that excludes post-birth contact between the surrogate and her family and the child born through surrogacy, unless provision is made for its inclusion in the surrogacy agreement. Its practices were found to give precedence to the interests of commissioning parents by largely excluding post-birth contact for previously unknown surrogates and limiting the autonomy of previously known surrogates to determine the terms of such contact. This position persists as inadequate discussions appear to occur between the parties on their post-birth contact expectations due to beliefs that this contact is not permitted or it is discouraged for unknown surrogates. High courts also do not appear to probe post-birth contact provisions in surrogacy agreements or the lack thereof. This assessment also raised concerns about the perception of bias and conflict of interests due to one attorney representing and one psychologist assessing all the parties to the surrogacy agreement.