KEY POINTS
- A Pretoria court approved a surrogacy agreement despite the surrogate’s five previous Cesarean sections, citing no legal restrictions on the number of surrogacies or Cesarean deliveries in South Africa.
- The commissioning parents, unable to conceive naturally after a medical complication, will use cryopreserved eggs and the husband’s sperm for the surrogacy.
- The case underscores the need for clearer regulations on surrogacy, as South Africa currently lacks specific guidelines compared to countries like India and Vietnam.
The Gauteng High Court in Pretoria has approved a surrogacy agreement for a couple unable to conceive a second child, despite concerns over the surrogate mother’s five previous Cesarean sections.
According to IOL, The court ruled that there is no legal limit on the number of times a woman can act as a surrogate or undergo a Cesarean section in South Africa.
The surrogate, a 30-year-old woman, has successfully carried five pregnancies to term, all delivered via Cesarean section, including two previous surrogacies.
Medical experts confirmed that she is in good health and that another pregnancy would not pose significant risks to her or the unborn child.
Judge Brenda Neurkircher emphasized that while the court may have reservations, it cannot impose restrictions not outlined in the Children’s Act. “This is an omission in the Children’s Act which a court cannot regulate, as to do so would be to tread on the separation of powers doctrine,” she stated.
Legal and medical considerations in surrogacy agreements
The case highlights the lack of specific regulations governing surrogacy in South Africa, particularly regarding the number of times a woman can act as a surrogate or undergo Cesarean sections.
In contrast, countries like India and Vietnam impose stricter limits, allowing surrogacy only once, with additional restrictions in Vietnam requiring a familial relationship between the surrogate and the commissioning parents.
The commissioning parents, who already have a three-year-old daughter, turned to surrogacy after the mother suffered a ruptured uterus during her second pregnancy, resulting in the loss of their son and an emergency hysterectomy.
They have five cryopreserved eggs, which will be fertilized using the husband’s sperm and implanted in the surrogate.
Medical experts, including a reproductive medicine specialist and a gynaecologist, assured the court that the surrogate’s health would not be compromised. “There is no medical reason to indicate that she cannot safely gestate another pregnancy,” they concluded.
