Rights of Parents Navigating Surrogacy

Issue: If you opt of surrogacy, what are your rights and what are the surrogate mother’s rights?

Here’s a question from Gerhard:

My wife and I had been trying to have a child for about two years when we finally decided to take our fertility doctor’s advice and opt for surrogacy. We found a lovely young lady through the fertility clinic to be our surrogate and subsequently followed all the legal processes required. We put in place a valid legal surrogate motherhood agreement with her and figured it would be a few months until we had our little bundle of joy.

Shortly after insemination, our surrogate requested a change to the agreement. We had agreed that she would have no contact with the child, but after insemination, she had a change of heart. She now wanted to ensure that she and her family would maintain contact with the child. We refused such an amendment as we wanted our child to know only us as their parent. Unfortunately, she was not amenable to that and said if we didn’t agree to her demands, she would cancel the agreement and keep the baby for herself. If we fight the cancellation, she says she will have an abortion. We were so excited about our baby, but this surrogacy route has turned into a nightmare.

Can we stop her from cancelling the agreement and from having an abortion? And if she insists, can we cancel the agreement ourselves and walk away?

From The Legal Desk:

Thanks for your question Gerhard. I’m sorry you and your wife have found yourselves in this predicament. A child is a beautiful gift, especially to parents such as yourselves who are desperate to welcome and love one. I hope I can help you navigate this conundrum. Let’s take a look at the legals…

Before we delve into the specifics, let me clarify certain terms for those unfamiliar with surrogacy. A surrogate mother is a woman who agrees to undergo artificial insemination to carry a child for another set of parents, known as the commissioning parents. A surrogate motherhood agreement (SMA) is a contractual arrangement between a surrogate mother and the commissioning parent(s), detailing the surrogate mother’s commitment to undergo artificial fertilisation for the commissioning parent(s). This agreement includes the surrogate mother’s commitment to relinquish the child to the commissioning parents upon birth, with the understanding that the child will be legally affiliated with them.

According to Section 296(1)(a) of the Children’s Act,¹ a court must confirm a surrogacy agreement before it is implemented. Section 295 of the Children’s Act outlines conditions that must be satisfied before a court may confirm a SMA. I won’t go into these conditions since you mentioned you had a legally valid SMA in place.

Under a valid SMA, when a child is born to a surrogate mother, the child is legally recognised as the child of the commissioning parent(s) from birth. The surrogate mother must transfer custody to the commissioning parent(s) promptly after birth. Notably, neither the surrogate mother, her spouse/partner, nor any relatives retain parental rights over the child. The child is not entitled to maintenance or inheritance from the surrogate mother, her spouse or partner, or any relatives. Any interaction/contact between the child and the surrogate mother, her spouse/partner, or relatives is subject to the provisions outlined in the surrogate agreement.

For a valid SMA, the commissioning parents’ gametes must be used for conception. Essentially, the child must be the biological offspring of the commissioning parents, despite the surrogate mother’s role in the pregnancy and childbirth. While using the gametes of both commissioning parents is preferable, if this is not feasible for legitimate reasons, at least one commissioning parent’s gametes must be utilised.

Your message did not specify whether both your and your wife’s gametes were utilised or if the surrogate mother’s gametes were involved. This information is crucial to answering your question regarding whether the surrogate mother can cancel the SMA. If the surrogate mother is also the genetic parent, she has the right to terminate the SMA anytime up to 60 days after the child’s birth by submitting written notice to the court. The court is obligated to terminate the agreement if, following a hearing, it determines that the surrogate mother voluntarily terminated the agreement and fully understands the consequences. The surrogate mother assumes no liability except for payments received under section 301 of the Children’s Act.

If both you and your wife’s gametes were used, the surrogate mother has no genetic relation to the child, and thus, she lacks the authority to terminate the SMA. In such instances, she is not granted this right. Concerning your ability to terminate the agreement yourselves, the Children’s Act does not explicitly address this, but it is improbable if both your and your wife’s gametes were involved.

As previously mentioned, only a surrogate mother, who is the biological mother, has the authority to terminate the SMA. In your case, Gerhard, if your surrogate mother opts to terminate the agreement, the child is considered hers, and she is not obligated to transfer custody to you. However, if she is single, the child will be recognised as your child, i.e., the child of the commissioning father. As such, in the event of termination by a single surrogate mother, she may seek maintenance from you, the commissioning father, and the child holds succession rights against you.

Regarding abortion, the surrogate mother holds decision-making power as per the Choice of Termination of Pregnancy Act.² While she must inform you, the commissioning parents, before terminating the pregnancy, she is not bound by your opinion. Regardless of genetic relation, the surrogate mother is not held liable to the commissioning parents for medically necessary terminations. However, in non-medical terminations, she is accountable for any payments received under section 301 of the Children’s Act, i.e., payments covering expenses, loss of earnings, insurance, and medical services. All the best.

Written by Theo Tembo

1. 38 of 2005. ↩︎
2. 92 of 1996. ↩︎