South Africa requires the parties to show that they are suitable persons to be considered parents. Our legislation and the courts haven’t defined what exactly a suitable person is or what determines or makes a person a suitable parent. There’s no standard requirement that you must have a certain sum in your bank account, or you must live in a particular area or a suburb. What we provide to the court and what the court has been satisfied with, since the surrogacy inception in 2010 is a relatively thorough psychological screening of the intended parents. Often the psychological assessment takes on asocial worker style assessment, with pictures and a description of the living environment. Most judges and courts do not require this but predominantly what we are looking for is to assess any psychological or psychiatric issues, that might preclude a person from being a suitable parent.
An example might be diagnosed with schizophrenic multiple personality disorder, that presents itself as an aggressive individual something really random. We are able to explain things like currently being treated for anxiety or mild bouts of depression in the past. Those things don’t really play a huge part. We provide the court with a relatively detailed psychological report and assessment. Secondly, there are various medical requirements as we need to show the court that you require to have surrogacy. These include the requirement that at least one of the commissioning parents, or both mother and the father, are genetically linked to the child. Our constitutional court has recently ruled that this is not an infringement of the party constitutional rights. But if both parties are unable to be genetically linked to the child then, unfortunately, surrogacy isn’t an option. Additionally, the mother or both parties must have what is considered edition which is considered permanent and irreversible’ and which prevents them from carrying a child. It’s a relatively politically correct way of saying people can’t have children, especially when we have same-sex male couples using surrogacy because to call it a ‘condition’ which is permanently irreversible is not correct.
Ultimately the doctor confirms that in the case of a heterosexual couple, the wife has had a hysterectomy or something which then prevents her from carrying a pregnancy. The parents also go through a very thorough screening process, doing tests for HIV and STDs and other transmissible diseases. Similarly, for the surrogate, we also check that she’s a suitable person, that she has one living child of her own, that neither the commissioning parents nor surrogate parents have a criminal background, and also that the surrogate gets tested for rare transmissible disorders, HIV and STDs. Then, the interesting requirement, is that the documentation must be in writing and it must be documented and entered in SouthAfrica, so that requires the parties to be present in South Africa when signing surrogacy agreements and the legal affidavits, which we then present to the court. Both parties have to be present in South Africa.
A further requirement which is a sticking point for most couples doing surrogacy is this issue that one of the commissioning parents must be domiciled in South Africa. Domicile is a very interesting concept for them to have used in legislation because it’s relatively open for interpretation. It has what we call a subjective element and inquiry to it, which relates to the intention of the parties. We need to show the court that a person is physically present or was physically present in the past in South Africa and that they have an intention to reside in South Africa at some point in the future indefinitely. So once we were able to show suitability from a psychological criminal and medical perspective, then we’re able to proceed with surrogacy and obviously that we have entered into the relevant documentation in South Africa.