Woman’s desperate court fight to become a mother
A CAPE Town woman who has had a heartbreaking 10-year journey to have a baby has now gone to court in a desperate bid to become a mother.
The 55-year-old has had 18 failed in vitro fertilisation (IVF) procedures and two miscarriages since 2001, but the law prevents her from using a surrogate mother to carry a baby for her.
Her “last hope” of having a doubledonor surrogate pregnancy has been dashed by a controversial clause in the Children’s Act, which requires that the sperm or egg of one of the commissioning parents be used.
The genetic-link requirement makes it illegal for single infertile people, as well as barren couples, to have children through surrogacy. With the help of Lawyers for Human Rights, she is challenging the Department of Social Development, which has confirmed it intends opposing the application.
Spokesman Lumka Oliphant said the department did not believe it was an unconstitutional requirement, and that in this case it believed the woman was seeking “to create a model child” by selecting donors to predetermine the characteristics of the child.
The woman was granted an anonymity order by Aubrey Ledwaba, deputy
Because of her inability to produce eggs, she cannot have a child through surrogacy
judge president of the North and South Gauteng high courts, on June 28 to protect her identity.
In a 50-page affidavit, lodged in the High Court in Pretoria, she stated that “especially since I have already met with and reached, in principle, an agreement with a potential surrogate mother, the hope that surrogacy offers me is real and practically within my reach — if the law would allow it”.
She argued that adoption was not a guaranteed option for her because, among other things, there was “an immense countrywide scarcity of white babies” available for adoption, that her age did not favour her chances, and that it was not a guaranteed alternative because a mother giving up her baby for adoption had a 60-day grace period within which to change her mind.
While initially trying to fall pregnant between 2001 and 2011, her eggs and her husband’s sperm were used to create embryos for the IVF procedures, but they had to resort to anonymous donor eggs when her own proved unviable.
But after her 20-year marriage ended in a divorce, she started using anonymous donor sperm for more than a dozen other IVF attempts, none of which were successful.
She suffered two miscarriages during that time. Told that her chances of becoming pregnant were slim, she found a surrogate, but at that stage the law had changed and now required the genetic link of at least one parent.
The woman said she received the news “with a mixture of shock, sadness and bafflement, especially since I have,
after all, been using donor gametes (both male and female) for several years”.
“If I were still 35 or even 45 years old, having to wait for several months or even a few years for the outcome of this matter would not have impacted greatly on my personal life plans to have and raise a child.
“However, as I am getting older, time gets more precious.”
She said although she accepted that most people preferred to use their own egg or sperm to have a genetic bond with their children, this was no reason legally to enforce it on everyone.
“It is my contention that the genetic link requirement infringes on the constitutional rights of prospective commissioning parents and single infertile people.”
Her court papers contain a report by Professor Susan Golombik, director of the Centre for Family Research at Cambridge University, stating that the presence or absence of a genetic link between parent and child in surrogacy cases did not appear to have an effect on the psychological wellbeing of a child.
A clinical psychologist specialising in the psychology of infertility said the public used to fear that infertile couples would apply “harmful” specifications in selecting donors a generation ago when the technology was still new, but prospective parents now placed great importance on matching the donors as close to themselves as possible.
“Instead of applying eccentric cri-
Very few white, Indian and Chinese babies are available for adoption
teria, prospective parents are looking for donor gametes that can effectively become the non-biological parent’s constructive genetic contribution.”
Surrogacy law expert Robynne Friedman, who has two adopted children as well as a four-year-old son through a surrogate mother, said she had to turn away a number of infertile couples because of the law.
“I had a client whose husband passed away and who had a hysterectomy. It was very painful for me to turn her away.”
She said there was a huge waiting list for adoptions, adding that there were very few white, Indian and Chinese babies available for adoption.
Tertia Albertyn, founder of the Surrogacy Advisory Group and an online egg-donation agency, said the geneticlink legislation should be scrapped because it discriminated against single women who were infertile.
“Because of her inability to produce eggs, she is prevented from having a child through surrogacy.”
She said although age was not an issue in this case, some people may have concerns about the fact that the applicant is already 55, adding: “Why is a 51-year-old male allowed to have a baby through surrogacy but a 51-yearold woman is not?”
Albertyn, who is also infertile, said she was used to people judging her for pursuing her dream of motherhood.
“I was told many times that I should just accept that God, fate and the universe has decided I shouldn’t be a mother. That is nonsense.
“Everyone has the right to have a family and everyone has the right to decide the route to take to get their family.”