WHOSE BABY IS IT ANYWAY?

A women is due to give birth this month to a surrogate baby who is not genetically linked to her is refusing to conclude legal proceedings to hand the infant over to its KZN-based parents. Vivian Attwood reports

A KWAZULU-NATAL based couple battled unsuccessfully for seven years to conceive a longed-for child. Finally, having exhausted all other options, they approached a surrogacy agency to link them with a women prepared to carry a baby created using anonymous donor eggs and the husband's sperm.

At first all went well, and the appointed surrogate, a 26-year-old Free State woman, duly fell pregnant. She was supported throughout the pregnancy by the commissioning parents, who covered all her expenses. Partway through the pregnancy, however, relations became strained when the surrogate demanded money and items on an unspecified "wish list".

At that point the horrified couple discovered that the contract they had signed with the surrogate was not legally binding, and they could lose the child if she decided to renege on her word. South Africa's surrogacy laws were tightened in April last year when certain clauses in the Children's Act came into effect. These require court sanction of all surrogacy agreements before any attempt is made to impregnate a surrogate mother.

On Monday the parents instigated an urgent bid in the Durban High Court to ensure that the surrogate hands over the baby, which is expected to arrive by the end of the month. The matter will be argued in court on Tuesday.

In the affidavit submitted to Durban High Court Judge Achmat Jappie, the couple said they had been married since 2003. The wife has children from a previous marriage, but could no longer conceive owing to an irreversible uterine condition. They claimed that ehy met the currogate mother-to-be in 2009 and signed a birth agreement with her in February 2010, unaware that new legislation was to be introduced in April. In May the fertilised embryo was implanted.

Jenny Currie, the founder of the egg donor and surrogacy agency baby2mom, said the beleagured couple could have saved themselves a lot of agony if they had followed advice. "We started insisting that commissioning parents get court permission as far back as November 2009, because we knew the new laws were imminent.

"The commissioning parents in this instance were reminded repeatedly how important it was for them to get a court order, to ensure there were no glitches further down the line. We recommend specialist surrogacy attorneys, but they didn't follow our advice. Surrogacy is a conservative, very specialised process. There are no short cuts, because there are too many imherent risks for the parents.

"It is an altruistic act. There is no question in South Africa of 'wombs for rent', which is why we have introduced such stringent legislation. Before teh amendments to the law, commissioning parents had to legally adopt the baby, which potentially gave the surrogate time to change her mind. Now she may not. The court order is binding on both the surrogate mother and the commissioning parents."

According to Currie, the surrogate, who does not have children of her own (something mandatory for a potential surrogate under the new laws) underwent extensive medical and psychological evaluation and was declared fit.

Gynaecologist and reproductive specialist Anil Ramdeo, the founder of the Centre for Reproductive Assistance and Endocrinology, based in Westville, said he was "very sceptical" that the clinicians who implanted the fertilised embryo did not know that the law had changed before the procedure. He said the error in judgement could have far-reaching implications for the couple.

"Under the old legislation, a gestational surrogate baby was considered to be the offspring of the woman who had carried and given birth to it. He or she only became the child of the commissioining parents after they had gone through adoption. It remains to be seen what the court will decide in this unique case."

Ramdeo, who treats patients from around the globe who have compromised perfility, said he had observed a marked increase in the need for donor eggs and surrogate mothers in recent years.

"Many women are leaving it too late to fall pregnant while they pursue their careers. By their 30s or 40s there has been dramatic attrition in the number and quality of their eggs. This is something to take cognisance of. Women should freeze their eggs if they are going to postpone pregnancy," he advised.

Other causes of an inability to conceive include premature ovarian failure, severe endometriosis, cancer, failed recurrent IVF and chronic or hereditary medical conditions, according to the specialist.

"Surrogacy must be meticulously executed following all protocols, both legal and medical," added Ramdeo.

Pieter Kloppers, of Kloppers Incorporated, is acting for the couple. "We are in the process of settling the matter and are confident of a positive outcome," he told the Sunday Tribune.

Kloppers confirmed that according to the new legislation, the agreement between the parents and the surrogate mother was considered invalid.

"At the end of the day, however the baby does not possess any of her genetic material, so she can't claim the child, or git it up for adoption without the consent of the biological parents."

Kloppers said the case would never be repeated in this country. "It was a grey area, adn the doctors who performed the implantation were evidently not aware that the new legislation was in force. It won't happen to parents again."

Meanwhile, British newspapers revealed that a judge had made a groundbreaking ruling allowing a surrogate other who had second throughts about handing over the baby she had borne for an unfertile mother to keep the child. The baby girl was conceived using the commissioning father's sperm and an egg from the surrogate mother.

The judge ruled that the welfare of the six-month-old baby, known as T, "requires her to remain with her mother".

It is expected that the ruling will have far-reaching implications for surrogacy.

*Names have been withheld to protect the identity of the unborn child.