Surrogacy battle is her baby
Won’t be deterred by court
BY THE TIME she had gone through eight gruelling, emotional rounds of unsuccessful IVF treatment, Robynne Friedman turned to her next option: surrogacy.
But back then, in 2001, commercial surrogacy in South Africa, though legal, was unthinkable for many struggling aspirant parents.
Friedman had to dig deep, and went through two failed surrogate relationships before finding a match.
“I had to take a commonsense approach that meant I needed to lose the shame and reach out to family and friends to let them know I was looking for a surrogate mother,” Friedman says.
Her connection with surrogacy would ultimately move her from commercial law, to family law, specialising in surrogacy.
This week, the Constitutional Court ruled that the application of her client, known only as AB, who had applied for a confirmation of an earlier ruling from the high court in Pretoria, which found a provision of the Children’s Act 38 of 2005 to be invalid on the basis that it was inconsistent with the constitution, could not hold.
The provision, Section 294, says that unless the gametes (reproductive cells) of at least one commissioning parent are used in the conception of the child, the surrogate motherhood agreement is invalid.
AB wanted to declare the provision inconsistent because it prevented a surrogacy contract.
But the Constitutional Court found that the section was indeed valid, and that the genetic link between the child and at least one parent was important for the self-respect of the child.
For Friedman, who has championed the rights of commissioning parents because she knows the situation firsthand, says there needs to be more conversation on surrogacy.
“We need to change the mindsets of people around surrogacy.
“The only way taboos around surrogacy will dissipate is if we talk about them, and people are educated about it,” she says.
“I was infertile so I attempted surrogacy 15 years ago. I had to go through the process alone. I was with a fertility clinic, but they hadn’t really dealt with surrogacy.”
Friedman remembers her own struggles in finding the right surrogate.
“The first surrogate relationship broke down because either myself or the surrogate was not healthy enough.
“The second broke down be- cause the surrogate mother’s heart was not in it. She was doing it for financial gain.”
At the time, commissioning parents could pay anything between R15 000 and R250 000.
By the time Friedman got it right with her third surrogate mother, she had made serious changes to her lifestyle, changing her fertility clinic and using donor eggs.
“We had a really good relationship. It was a comfortable pregnancy. The surrogate took control of the pregnancy,” Friedman says.
Before she had explored surrogacy, she had already started the process to adopt two chil- dren. Surrogacy gave her her third child.
It would also turn out to be the push that Friedman needed to move into surrogacy law, a specialised niche field.
She helped to start a surrogacy advisory group – fertility specialists, medical lawyers, psychologists and social work- ers – to bolster support for surrogates and surrogate parents.
But while surrogacy is still considered taboo by some in South Africa, more and more people come through her doors.
“Around 60 percent of my clients are gay couples and single gay parents. Then we also get heterosexual couples and single heterosexual people wanting to be parents.”
Few black parents consider surrogacy, Friedman says.
“We often get a lot of queries from black women who want to be surrogate mothers, but they often don’t have anyone they can assist.”