South Africa shows a way to ensure more predictability in surrogacy arrangements

A new surrogacy law in South Africa suggests a way to improve those in the UK — by making surrogacy agreements enforceable. In the UK, commissioning parents can only find out after the child is born if they can become the legal parents. However the new South African legislation makes it possible to establish that the commissioning parents will become the legal parents before embarking on the surrogacy process.

UK law governing surrogacy is complex, and not always predictable. In certain circumstances - for instance if the surrogate mother changes her mind and wants to keep the child - the would-be parents (who may also be the genetic parents) have no rights.

Further uncertainty is introduced by changing interpretations of the restrictive UK legislation. In a recent case, a commissioning father died after the embryo had been implanted, but before the child was born. Normally, it is stipulated that two commissioning parents are required for a surrogacy to work, and so without the commissioning father there was some doubt over what would happen. Fortunately, and somewhat unexpectedly, the UK family court held that the commissioning mother could become the legal mother of the child, despite UK legislation governing surrogacy making no provisions for single parents.

This type of uncertainty results because, in the UK, commissioning parents have to apply to a court after the child is born. This is in contrast to countries such as South Africa, where a new Act provides that surrogacy agreements meeting certain criteria are valid before artificial fertilisation of the surrogate mother is carried out.

Under the South Africa Children's Act 2005, which came into force in 2010, an agreement could be validated by the High Court before the surrogacy is undertaken. This brings certainty to the commissioning parent(s) as they can now be treated as the legal parents of the child right from the start of the process. This reduces worry, stress and expense.

Furthermore, the South African legislation also provides certainty for surrogate mothers - once the surrogacy agreement has been approved they cannot be left with a child that is not genetically theirs.

As well as providing certainty, this legislation also puts parents that need to use surrogates on a more equal footing with natural parents. Importantly, the South African court took the view that people who have to go through the surrogacy process should not be held to a higher standard than natural parents.

In particular, it is now possible for single people who need to use a surrogate to become the commissioning parent, just as single people can become single parents through circumstance. This approach could be persuasive in the UK where judges are currently trying to come to terms with rapid developments in modern society, where there is not only a growing numbers of single parents, but also more people who can only become parents via surrogacy.

Finally, in the context of surrogacy, the principle of non-discrimination, something taken seriously in the 'rainbow nation', was extended to allow gay couples to become the parents of a child born to a surrogate mother.

To me, it is easy to see how providing more certainty would be welcomed by both parties — it gives the commissioning parents the certainty they will become the legal parents, and the surrogate mother the certainty she will not be left 'holding the baby'.

Here, we will have to wait and see whether the Government will legislate to bring the UK surrogacy laws in line with these developments. In the meantime, UK courts will have to do their best with current legislation — and the new South African judgment may well be persuasive in some cases.