Infertility issues are often stigmatised instead of being seen as a health concern, thus subjecting one to mental illnesses.
It is estimated, according to the World Health Organisation, that nearly 48-million couples and 186-million individuals live with infertility, which has a negative bearing on their social lives as they are constantly exposed to violence, divorce, social stigma, emotional stress, depression, and anxiety.
A 2017 study by Karina Shreffler suggests that infertility largely contributes to self-hate and low self-esteem, because of its social stigma. According to the study, people living with infertility often question their worth or feel like their bodies are failing them.
“It can make you feel as though you’ve failed. And because of the stigma associated with infertility, it can be a profoundly isolating experience,” according to Shreffler.
However, with technology advancing immensely, there are a number of fertility options for those couples who still wish to become parents.
What are my infertility options?
Infertility solutions vary depending on one’s choice corroborated by a fertility expert’s opinion. They include medicines that bolster one’s reproductive system, surgical procedures, and assisted conception such as intrauterine insemination and in vitro fertilisation (IVF). Adoption and surrogacy are some of the choices with great benefits.
What is surrogacy?
Surrogacy is an arrangement whereby a woman agrees to carry and deliver a baby for someone who wishes to be a parent. According to Fertility Law, people may seek a surrogacy arrangement when pregnancy is medically impossible, when pregnancy risks are dangerous for the intended mother, or when a single man or a male couple wishes to have a baby.
“A surrogate is sought out when the intended parents are unable to give birth due to a medical condition, which has been diagnosed by a fertility expert. The condition must be permanent and irreversible,” according to Fertility Law.
“In addition, at least one of the intended parents must be genetically related to the child, i.e., there needs to be a genetic link to at least one of the intended parents.”
In surrogacy arrangements, monetary compensation may or may not be permitted depending on the state (in the case of the US) where the participants come from. Where it is permitted, it is referred to as commercial surrogacy.
According to Fertility Law, commercial surrogacy is not allowed in South Africa.
“A surrogate in South Africa does not get paid an income. [As mentioned before], surrogacy is done for altruistic reasons only.”
However, chapter 19 of SA’s Children’s Act makes provision-specific compensation for expenses that relate directly to IVF, the pregnancy of the surrogate mother, and the birth of the child.
The act also makes provision for loss of earnings endured by the surrogate mother as a result of the agreement, and medical and life insurance covering the surrogate mother should anything happen because of the pregnancy.
“Any other payment, whether it is in cash or in-kind, is illegal and carries with it very serious criminal sanctions, up to 20 years in prison. It must be noted that any promise or agreement for the payment of any compensation to the surrogate mother or any person is illegal and unenforceable,” according to Fertility Law.
Types of surrogacies and risks involved
Fertility Law says there are two types of surrogacy options recognised by law in South Africa.
The first is traditional surrogacy, where the surrogate’s egg is fertilised by the intended donor’s sperm by means of natural or artificial insemination. However, there are risks involved. The surrogate mother could decide to terminate the agreement in terms of section 289 (1) of the Children’s Act.
“Traditional surrogacy [also known as partial, genetic, natural or straight surrogacy] involves natural or artificial insemination of a surrogate. The sperm that will be used will be that of the commissioning father. The resulting child or children born are genetically related to both the commissioning father and the surrogate.
“The risk associated with a traditional surrogacy is that, in terms of section 298(1) of the Children’s Act, a surrogate mother who is also a genetic parent of the child concerned may at any time prior to the lapse of a period of 60 days after the birth of the child terminate the surrogate motherhood agreement by filing a written notice with the court.
“In terms of the Children’s Act, the court must terminate the confirmation of the surrogate motherhood agreement upon finding, after notice to the parties to the agreement and a hearing, that the surrogate mother has voluntarily terminated the agreement and that she understands the effects of the termination.
“The court may issue any other appropriate order if it is in the best interest of the child. The result of this cancellation is that the surrogate mother automatically obtains parental responsibilities and rights, along with the commissioning father.
“The parties will then need to enter into a parental rights agreement to regulate contact, care and maintenance of the child or children born as a result thereof, and have the court confirm this arrangement.”
The second is gestational surrogacy, which includes the creation of an embryo by means of an IVF which is then implanted in the surrogate. According to Fertility Law, this type of surrogacy entails that the baby will be genetically distinct from the carrier/surrogate.
There are many methods of achieving this type of surrogacy. They include:
- The creation of an embryo using the intended parent’s sperm and eggs which means the baby will be genetically related to both parents.
- The creation of an embryo using the intended father’s sperm and an egg from a donor which results in the baby being genetically related only to the father.
This method was laid bare in the South African local drama series, Skeem Saam, where Cedric Fourie, who plays Lehasa Maphosa, had a desire to have children with his deceased wife.
Maphosa had medically obtained his wife’s eggs and had them safely stored at a fertility clinic for later use, because he was looking for a surrogate mother who would carry the child. In this case, the baby would only be genetically related to Maphosa and his late wife, because there are no genetic relations to the surrogate mother.
- Alternatively, the embryo can be created using the intended mother’s eggs and sperm from a donor, meaning the baby will be genetically related only to the mother.
Local Afrikaans drama series, 7de Laan, in one of the episodes in February this year, showed how Keabetswe Motsilanyane, who plays the role of Lesedi Moloi, had a desire to have a baby with Fikani, the man she was obsessed with.
However, it seemed impossible at the time, because they were not in a romantic relationship. She then stole his sperm. The baby is genetically related to Moloi and Fikani, but her methods were unethical.
Meanwhile, Fikani’s wife Alexa, played by Carina Nel, cannot conceive and had resorted to surrogacy by asking her sister to carry the child using the sister’s egg and Fikani’s sperm. But with no contract in place, a legal battle on who the rightful mother was ensued.
Fertility Law suggests that in gestational surrogacy, the surrogate mother does not have an option to cancel the agreement as the parental rights sanctioned by the courts stipulate that the baby rightfully belongs to the commissioning parents.
“The surrogate mother does not have the option to cancel the agreement and obtain parental responsibilities and rights in a gestational surrogacy arrangement. The parental rights of the commissioning parents are confirmed by the court.
“It is a requirement of South African surrogacy law that at least one of the commissioning parents be genetically linked to the child. This was recently confirmed in 2015 by the Constitutional Court in the case of AB and Other v Minister of Social Development.”
Psychological issues involved
Psychological issues may arise during and after the pregnancy, because of the bond the carrier might formulate with the unborn child.
In a 2014 study, Iran Reprod found that significant biological bonds are formulated between a carrier and the fetus during pregnancy. Reprod said there is a risk of post-partum depression, feelings of guilt, and anger in surrogate mothers.
“There is a concern that the rented mother establishes such a firm emotional bonding to the fetus that separation of the newborn after giving [birth] to the commissioning couple may be very difficult, because she believes that the baby belongs to her and not to the commissioning couple.
“There is a risk of post-partum depression and psychologically harmful feelings of guilt or anger in these women. Some women undergo surrogacy because of economic problems without full awareness of the potential risks.
“It is also possible for the rented mother to be rejected by neighbors and friends that have deleterious effects on her psychological health, as well as her family’s.”
However, this may also be stressful for the commissioning parents. This because of the social stigma about infertility and mounting pressure from families, friends and social standards.
Who are legal and rightful parents?
Although surrogacy is a viable option for those who can afford it and are medically disadvantaged to achieve pregnancy on their own, it is also a mental health risk for both the surrogate mother and the commissioning parents.
According to Fertility Law, the baby rightfully belongs to the commissioning parents, as stipulated in section 297 of the Children’s Act. This is guaranteed from the inception of acquiring a court order permitting artificial fertilisation.
“The law in South Africa is clear on the issue of parental responsibilities and rights. The Children’s Act specifically regulates all things that relate to parental responsibilities and rights,” according to Fertility Law.
“In terms of section 297 of the Children’s Act, any child born of a surrogate mother in accordance with the agreement is for all purposes the child of the commissioning parent[s] from the moment of the birth of the child concerned.
“This is confirmed by the high court in a court order, which is obtained prior to artificial fertilisation. As such, the surrogate mother will not obtain any form of parental responsibilities and rights, neither will her family.”
Fertility Law is a law firm owned by Andrew Martin, an attorney specialising in assisted reproduction and family law.
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