Sunday, March 6, 2016

South African surrogacy and egg donation

In a week's time I will endure 24 hours travel to fly from Brisbane to Cape Town. The reason for my going? I was kindly asked by the organisors of a long running family law conference in Cape Town to address them about Baby Gammy and all things surrogacy.

The conference is well regarded, being run by one of the premier South African family law firms, Miller Du Toit Cloete Inc and the University of Western Cape.

The qualifications of partner Zenobia du Toit speak for themselves:

She was admitted as an attorney in 1982 and has practiced exclusively in Family Law, human rights and related and commercial law issues from 1998 onwards.

- Was an expert member of the Technical Committee on the Transitional Executive Council at the Multi-Party Negotiating Process, Kempton Park – prepared legislation on committee (April – October 1993)
- Presents various workshops and talks regarding family law matters, developing family law and gender equality, children's rights, constitutional aspects of family law, and constitutional law, both in South Africa and internationally.
- Co-edited the collection of papers presented at the annual conference (The Trials and Tribulations, Trends and Triumphs: Development in International African and South African Child and Family Law).
- Is a committee member of the world's eading association of family lawyers, the International Academy of Family Lawyers and is a member of the Family Law Committee of the International Bar Association where she chairs the sub-committee on the rights of the children. She is a committee member of both the Family Law Committee of the Cape Law Society and the Law Society of South Africa.
- Was appointed in 2013 to the International Working Group at the Hague Conference on Private International Law to develop a guide to good practice on the interpretation and application of Act 13(1)(b) of the 1980 Hague Child Abduction Convention.

While there, I will also have the joy of being able to lecture post-graduate law students about surrogacy, and visit one of the leading IVF clinics, Cape Fertility.

South African surrogacy law is interesting.

South African egg donors

It is an unfortunate reality that many in South Africa are poor, including young white women, who are wanted as egg donors in countries like Australia. Unfortunately, in South Africa, the identity of the donor is not known to the intended parents, or more importantly not known to the child. Hopefully this will change.

Many Australians go to South Africa for egg donation, but in the process may put themselves at risk of breaching longarm provisions of Australian law, which might mean that they are unintentionally committing an offence punishable by up to 15 years imprisonment. No one has yet been prosecuted.

More recently there have been media reports of South African egg donors flying to Australia to be donors here.

South African surrogacy

Surrogacy in South Africa is open only to those who live there.

What is unique about the process of surrogacy in South Africa is that, unlike anywhere else, before you start the surrogacy journey, a judge has to make a pre-approval order. The pre-approval order deems that, subject to the rights of the surrogate not to hand the baby over, when the baby is born the intended parents are the parents of the child.

The process of surrogacy in South Africa was highlighted in a Family Court case in 2013 when a South African man underwent surrogacy there, then fell in love and with his babies moved to Australia.

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