THE BUSINESS OF CARRYING BABIES
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