Legal Matters: Wombs for rent: Surrogacy agreements
Surrogacy is the process in which a woman bears a child for another with the intention of handing over the child to the commissioning or ordering parents once born

Legal Matters: Wombs for rent: Surrogacy agreements

Coddy Fungai Nyamundanda
In the past two decades there has been a remarkable change in the field of reproductive technologies.
Reproductive sciences have come in with techniques such as donor insemination, in-vitro fertilisation and embryo transfer methods. The techniques have completely revolutionised the reproductive environment.
They have instilled hope into many infertile couples who long to have a child of their own. Unfortunately, complications have arisen once these methods have been combined with surrogacy arrangements.
Before one explores the conflict zones of whether the lawmakers should enact regulation governing surrogacy arrangements, it is necessary to understand certain concepts.
Surrogacy is the process in which a woman bears a child for another with the intention of handing over the child to the commissioning or ordering parents once born.
The surrogate mother is the one who carries the child in her womb up to birth of the child. The genetic mother is the one who donates her ovum.
The commissioning parents are the ones who receive the child from the surrogate after the birth of the child.
These developments are unheard of and are still taking root in Zimbabwe.
Nonetheless, the question is whether surrogacy arrangements should be regulated under law.
Where married partners fail to bear a child of their own, the most probable recourse left is to adopt a child.
This area of adoption is not a problem since it is regulated mostly by the Children Act. However, where adoption is ruled out, some are left with no option but to do it the traditional way by engaging their elders and arranging for a close member of the family to bear children for the couple, depending on whether both parties were declared infertile or not.
Some argue that these practices are no longer prevalent because of modernisation but surely, it cannot be wholly declared that these practices are no longer in practice.
Considering the effects of globalisation and the fact that a considerable portion of our population is living in foreign lands where such arrangements are becoming more popular, the practice will find its way here one way or the other, if not already.
However, the challenges posed to the lawmakers are complex and those countries that have already enacted laws to govern such transactions are facing numerous legal challenges.
Surrogacy first entered the collective public conscience almost 25 years ago in the United States when Mary Beth Whitehead reneged on her promise to give up all parental rights to Baby M, the daughter for whom she served as a surrogate for a New Jersey couple.
The Baby M case provoked such an outcry in some quarters over concerns about “baby selling” or “womb leasing” and the possible exploitation of poor women that a number of states enacted bans on surrogacy.
Such concerns have eased somewhat with the growing acceptance and popularity of in-vitro fertilisation and other types of assisted reproductive technologies that allow a surrogate to bear and give birth to a child she has no genetic or biological connection to, using embryos created in a lab with donated eggs and sperm.
Those procedures, which have opened the possibility of parenthood to a variety of people who cannot have children of their own, single people, people with medical issues or infertility problems, same-sex couples and other non-traditional families have become the new norm in surrogacy arrangements.
One can never disagree that the prime concern in surrogacy agreements should the country decide to regulate such, would be to secure the welfare of the unborn child, leaving all other facets secondary. The best interest of the child must always be the most important consideration in surrogacy agreements.
Laws of most nations have outlawed commercial surrogacy arrangements and in the case of Zimbabwe, never at any point recognised the same, leaving these arrangements unregulated. This has proved to be detrimental to the interests of the parties because while these arrangements are absolutely unrecognised, secretive arrangements have no rules governing them.
Thus, people who shall then aim for these arrangements cannot obtain the best possible benefit out of it. For they will not know to whom or where to go for medical or legal assistance.
Moreover at every step, they will be under a constant fear of breaking the law, as the rules by which they are governed are ambiguous in nature or even non-existent.
Therefore, it is necessary for the State to explicitly lay down regulations to protect the varied interests of all.
There is also the view that if a law is to be created, it should require that there be a genetic link from at least one of the commissioning parents.
The argument is that the rights of any children born as a result of surrogacy would be compromised if the genetic link requirement is omitted and that the children would never know their biological parents and their genetic origins.
Others also argue that the genetic link should remain as a requirement for surrogacy, but that the law should allow for exceptional circumstances if, for instance, a close relative or a long-time friend is willing to donate their genetics.
Surrogacy has become so commonplace, in fact, that a host of boldfaced names from Elton John to Sarah Jessica Parker and Nicole Kidman have all publicly acknowledged using surrogates to birth babies for them.
The publicity has helped make the process more acceptable as a viable alternative to childbirth. Well, it is common cause that such comparisons with people from the First World and those in the Third World are far-fetched but the reality remains at the end of the day.
But surrogacy also can be a mine-field. The industry is largely unregulated. And the law in many places has failed to keep pace with the revolution in assisted reproductive technology, making the process a potentially risky one for the unwary or the unwise.
Having no laws directly addressing surrogacy leaves such arrangements in legal limbo and raising a number of vexing social, legal and ethical issues involving parenthood, the best interests of children and other non-traditional families for the society.
Further, the problem is more compounded by the fact that reliable figures on surrogacy are hard to come by. No government agency or private group tracks surrogate births and estimates will always remain estimates.
There is also no way to be sure of the qualifications, suitability or reliability of the surrogates who are offering their services. I personally suspect that the reality is obvious and the actual number might be high.
Of course, not all women are created equal but one sure way of ensuring legitimacy is through screening of the surrogate and a complete disclosure of life facts and circumstances between the parties. Such a screening serves to educate the surrogate on relevant issues and evaluate her ability to complete the process as intended.
A criminal background check, thorough medical history and analysis of any available insurance coverage should also be undertaken. Some experts recommend that the intended parents also be screened.
Issues that might prevent the surrogate from keeping her end of the bargain include a history of mental illness, a criminal record, or evidence of domestic violence or child abuse.
However, others do not believe that the intended parents should be subject to any screening since parents who are capable of having their own children are not subjected to any screening beforehand.
Such harsh realities though, will push many would-be parents to try to cut corners and go their own route. This impulsive mentality which cannot be suppressed no matter the divergent views one might harbour about this subject most often results in surrogacy agreements that break down, frustrate the parties’ intentions and result in unnecessary disputes.
It must be remembered that a woman who gives birth to a child using her own egg is legally presumed to be the child’s mother wherever she is. That is why traditional surrogacy is not favoured unless the parties are closely related or good friends and know exactly what they’re getting into. Thus it is better to deal with a total stranger altogether.
In an effort to bring order to the current chaos or rather imminent chaos, I advocate for laws governing surrogacy arrangements to be passed. The model law can require that a court has to verify the birth mother’s qualifications to carry a child and the intended parents’ qualifications to be parents.
The view that the court is the upper guardian of all children and that the best interests of the child should take precedence is of paramount importance. The law should entitle that the birth mother may be compensated for her services and has the power to terminate the agreement.
The recommended legislation should also stipulate that surrogacy agreements not approved by a judge are unenforceable, which provides a strong incentive for the parties to seek judicial scrutiny, and that prospective parents who enter into an unapproved surrogacy agreement and then refuse to adopt the resulting child may be liable for child support.
While providing for rules and regulations, care must be taken to ensure that they are not so stringent, so as to indirectly encourage underground surrogacy arrangements. Harsh rules can have an adverse effect on the parties to the arrangement.
They shall then be forced to enter into private surrogacy arrangements, thereby depriving themselves of the assistance of voluntary agencies intending to work in this field. Therefore, the rules and regulations must be accommodative enough to take into account the interest of the parties. It still remains to be seen where this new advanced phenomenon is heading to and whether the Zimbabwean society will openly welcome it.
This is why it has been proposed that an incorporating code of practice be drawn up which could probably govern all the crucial aspects of any surrogacy arrangement. This code must be binding on all parties. The practice of surrogacy should never be disregarded as wishful imagination, instead it should be appreciated as the most viable option for infertile couples from this century.

Coddy Fungai Nyamundanda is a legal practitioner who writes in his personal capacity. Feedback: [email protected]

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