We have heard the terms IVF (in vitro fertilisation), surrogacy and adoption but what does it all mean? Are they interlinked or are they completely separate in terms of the law?
In some instances they might be linked and in others not. This piece by Arvitha Doodnath, Legal Researcher Helen Suzman Foundation & Director at Doodnath & Associates, briefly discusses the differences as well as the laws that regulate them.
IVF (in vitro fertilisation) is a fertility process. This process involves the fusing of male gametes (sperm) and female gametes (the egg) outside of the body, and then once the egg is fertilised, it is placed in the uterus. IVF may also be used for surrogacy if one of the parents is unable to provide a gamete. IVF has been used in the following instances:
- Low sperm count
- Problems with the uterus or fallopian tubes
- Problems with ovulation
- Antibody problems that harm sperm or eggs
- The inability of sperm to penetrate or survive in the cervical mucus
- An unexplained fertility problem
IVF is never used as a first option in the treatment of infertility. It is used as a last resort, when other fertility treatments and so on have been tried and have not been successful.
This is usually an agreement reached between three parties where there exist the commissioning parents (the parents who wish to have a child via the surrogacy process) and the surrogate mother who is tasked with carrying the child in her womb.
This is regulated by the Children’s Act 38 of 2005, in Chapter 19. This Act sets out the requirements for entering into an agreement of surrogacy between the commissioning parents and the surrogate mother. The agreement of surrogacy has to be confirmed by the Court and is invalid unless confirmed by a Court. This is dealt with in terms of section 292 of the Children’s Act which states the following:
|No surrogate motherhood agreement is valid unless-|
|a)||the agreement is in writing and is signed by all the parties thereto;|
|b)||the agreement is entered into in the Republic;|
|c)||at least one of the commissioning parents, or where the commissioning parent is a single person, that person, is at the time of entering into the agreement domiciled in the Republic;|
|d)||the surrogate mother and her husband or partner, if any, are at the time of entering into the agreement domiciled in the Republic; and|
|e)||the agreement is confirmed by the High Court within whose area of jurisdiction the commissioning parent or parents are domiciled or habitually resident.|
|2)||A court may, on good cause shown, dispose with the requirement set out in subsection (1)(d).|
This section clarifies the requirements for a surrogacy agreement and its validity; it states that it has to be signed by all the parties involved or one commissioning parent if that parent is single; and makes it clear that the agreement has to be confirmed by the Court.
It is important to note that section 294 of the Children’s Act dealing with the genetic origin requirement has been struck out as being invalid. This section states the following:
No surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person.
This section was declared invalid in the case of AB & Surrogacy Advisory Group vs Minister of Social Development with Centre for Child Law as Amicus Curiae.
What does this actually mean though?
It means that the section will still remain in force until the order of invalidity is confirmed by the Constitutional Court. This order for confirmation was brought in March 2016.
This is progressive, as it paves the way for more people to use the process of surrogacy when the need requires such an agreement.
Adoption is a mechanism whereby people or couples can apply to have legal parental rights and responsibilities granted to them in respect of a child or children they wish to have in their family.
Adoption is dealt with in terms of Chapter 15 of the Children’s Act 38 of 2005 and it details the purposes of and requirements for adoption.
Adoption of a child or children by a person or couple confers parental rights and responsibilities and has to be confirmed in terms of an adoption order by Court. Section 242(2) of the Children’s Act effects just that, as stated above:
|An adoption order-|
|a)||confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent;|
|b)||confers the surname of the adoptive parent on the adopted child, except when otherwise provided in the order;|
|c)||does not permit any marriage or sexual intercourse between the child and any other person which would have been prohibited had the child not been adopted; and|
|d)||does not affect any rights to property the child acquired before the adoption.|
This section goes on to state that a child or children who are adopted are for all purposes regarded as the child or children of the adoptive parents. This is stated in section 242(3) of the Children’s Act.
IVF is different from surrogacy as explained above however IVF can be used for surrogacy but not vice versa and adoption is a totally different type of conferring of legal rights and responsibilities.
I hope that this article assists in further clarifying the differences and will assist people and couples when deciding what process or agreement to pursue.
Written by Arvitha Doodnath
Legal Researcher Helen Suzman Foundation & Director at Doodnath & Associates
 (40658/13)  ZAGPPHC 580