The Gauteng High Court said there is no specific rule or regulation in the country guiding or regulating the maximum time a woman can act as a surrogate – an omission in the Children’s Act, said the judge – nor are there regulations limiting the number of Caesarean sections a woman may have.
The judgment related to a married couple who wanted to use the services of a surrogate mother (30) to carry their second child, reports The Star, and who had to approach the court for it to be declared legal.
The issue raising some concern was that this would be the sixth pregnancy of the surrogate mother. All five babies during her earlier pregnancies were delivered via C-sections.
Judge Brenda Neurkircher had to determine whether a sixth similar pregnancy would put her or the foetus at risk.
Two doctors, however, advised that the surrogate mother was in good health and that another pregnancy would not put her or the unborn baby at risk.
Prospective parents who want to conclude a surrogacy agreement with the woman who will be carrying the child to term have to turn to court for its scrutiny for the agreement before it can be declared legal. The court has to ensure the agreement complies with the Children’s Act.
In this case, the surrogate mother’s first child culminated in a miscarriage at eight weeks, and she subsequently delivered her own three children, each by Caesarean section full term and without complication.
The surrogate mother also previously assisted commissioning parents on two occasions: the first resulted in the birth of twins via C-section in 2022; the second resulted in the birth of a girl in 2023, also via C-section.
She was subsequently examined by a reproductive medicine specialist as well as a gynaecologist.
Both stated that she was healthy, that there was no medical reason why she cannot safely gestate another pregnancy, and that the fact that she has undergone five previous C-section deliveries does not preclude her from having more similar deliveries.
Neurkircher noted that Chapter 19 of the Children’s Act was silent on the maximum number of times a woman may act as a surrogate, calling this an omission in the Act, “which a court cannot regulate, as to do so would be to tread on the separation of powers doctrine”.
The judge added that even though the court might have reservations, there was no medical evidence or reason – in this application – to refuse the relief sought.
The prospective parents had turned to the court as they want a second child. They have a daughter who is almost three=years-old.
During her second pregnancy, the woman suffered a ruptured uterus at 20 weeks’ gestation, and lost the baby.
She subsequently had an emergency hysterectomy, and is unable to have another child.
However, she and her husband have five eggs (oocytes) cryopreserved at a fertility clinic, which will be fertilised using the husband’s gametes. The embryos will be used during the artificial fertilisation treatments on the surrogate mother.
During the legal argument, it was pointed out that while South Africa did not legally cap the number of times a woman may act as a surrogate, comparative studies have shown that in law this can only happen once in India and only once in Vietnam.
In the latter case, the surrogate must be related to the commissioning parents.
In America, there are no restrictions, but it is recommended the number should be limited to six pregnancies.
See more from MedicalBrief access:
Medical assessment to be required for surrogacy agreements – Gauteng High Court
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Surrogacy group fails in bid to declare regulations unconstitutional