Finweek English Edition - - FRONT PAGE -

Al­though sur­ro­gate par­ent­ing is an in­fant in­dus­try in South Africa, there used to be a mar­ket for women to make some kind of liv­ing from cre­at­ing ba­bies. This was put to an end by the Chil­dren’s Act 38 of 2005 (im­ple­mented on 1 April 2010) which re­sulted in the fer­til­ity in­dus­try be­com­ing strictly leg­is­lated and con­trolled.

Rep­re­sen­ta­tive of the Sur­ro­gacy Ad­vi­sory Group and sur­ro­gacy law spe­cial­ist Robynne Fried­man, says that com­mer­cial sur­ro­gacy has since been crim­i­nalised and in­tended par­ents are not al­lowed to pay sur­ro­gates any­thing other than their outof-pocket ex­penses and loss of earn­ings.

“It [com­mer­cial sur­ro­gacy] is not a crime, but you will be pros­e­cuted if you pay a sur­ro­gate a large amount of money,” says Fried­man. “You have got to show the courts ex­actly what your [sur­ro­gate mother’s] out-of-pocket ex­penses are, and you’ve got to prove your loss of earn­ings based on salary at your cur­rent em­ploy­ment and based on the fact of how much ma­ter­nity leave you’re tak­ing and how many days un­paid leave you are tak­ing which re­lates di­rectly to the sur­ro­gacy.”

The sur­ro­gate mother may be com­pen­sated − this could in­clude for ma­ter­nity leave, vis­i­ta­tions to the doc­tor or if put on bed-rest. Com­pa­nies gen­er­ally do not cover sur­ro­gacy since it’s an elec­tive ac­tiv­ity. If a sur­ro­gate ap­proaches an agency it can pass them on to cou­ples or clin­ics, but a fee may not be charged. There must also be a med­i­cal di­ag­no­sis val­i­dat­ing the need for a cou­ple to have a sur­ro­gate.

In the case of sur­ro­gacy, the sur­ro­gate must be domi­ciled in SA and must have given birth to at least one child with­out com­pli­ca­tions.

A High Court or­der has to be granted be­fore the in vitro fer­til­i­sa­tion (IVF) process be­gins with a sur­ro­gate mother. This also en­sures that the child is born as the com­mis­sion­ing par­ents’ own and there is no need for the in­tended par­ents to adopt the child at birth. It may take some­where be­tween one to six weeks for the High Court to grant the or­der from an ap­pli­ca­tion be­ing made by an at­tor­ney. The com­mis­sion­ing par­ents and sur­ro­gate mother would then have 18 months to fall preg­nant from the date the court or­der is granted.

Dawn Blank, co-founder of Gift Ov Life, an egg donor agency, says that sur­ro­gacy never used to be leg­is­lated so there were a lot more women that were pre­pared to be sur­ro­gates. Blank ex­plains that even if a cou­ple can af­ford the R60 000 IVF for a sur­ro­gate mother, the new law has made

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