Can a Surrogate Mother Change Her Mind?

Issue: Can a surrogate mother refuse to give up “her baby?”

Here’s a question from Zandi:

I was watching a TV show called ‘Accused’ the other night. In the episode, there was a deaf surrogate mother who had a change of heart when it came time to give up the child. Her reason for changing her mind was because the child was born deaf, while the intended parents were not deaf. Therefore, the surrogate mother felt the child would be better off with her. I’m simplifying the storyline, but it made me wonder whether a surrogate mother can just change her mind and keep the child. Do the adopting parents have to simply hope and pray that the surrogate will give them the child after delivery?

From The Legal Desk:

Thank you for your question, Zandi.

I am a little surprised at the number of questions I receive regarding surrogacy. It is not something that I imagined was this prevalent in African culture. That said, customs like sororate (where a younger sister or half-sister can marry the husband to continue a marriage if the wife is infertile) are part of African culture, so I suppose it should not be surprising that the use of surrogates is ubiquitous. Regarding your question, let’s take a look at the legals….

The legal framework governing surrogacy in South Africa is the Children’s Act,¹ which defines a surrogate mother as a woman who agrees to be artificially inseminated to bear a child for commissioning parents, not adopting parents as you referred to them. Central to this arrangement is the Surrogate Motherhood Agreement (SMA), a formal contract where the surrogate mother commits to bear the child for the commissioning parents and subsequently relinquish parental rights upon birth.

Under sections 292(1)(a) and (e) of the Children’s Act, a valid SMA must be in writing and confirmed by the High Court within whose area the jurisdiction of the commissioning parent(s) are domiciled or habitually resident.² Crucially, at least one commissioning parent and the surrogate mother, along with her spouse or partner if applicable, must be domiciled in South Africa at the inception of the agreement.³ This legal instrument is pivotal because, ordinarily, the woman who gives birth through artificial insemination is deemed the child’s mother,⁴ except in cases covered by a valid SMA.⁵

Therefore, upon the child’s birth as per the SMA, the child is legally recognised as the child of the commissioning parents. The surrogate mother must hand over the child to the commissioning parent(s) as soon as is reasonably possible after the birth. The surrogate mother, her partner, or relatives retain no parental rights in respect of the child. Furthermore, absent provisions in the SMA, no contact, maintenance claims, or succession rights exist between the child and the surrogate mother or her associates.⁶

It should be noted that even with a valid SMA in place, the surrogate mother does reserve the right to terminate the pregnancy in terms of the Choice on Termination of Pregnancy Act.⁷