26 Oct, 2023
Overview of Surrogacy in Zimbabwe
With the increase in infertility rates all over the world, more and more couples are looking into the use of Assisted Reproductive Technology (ART) methods, such as surrogacy, to enable them become parents. For couples who are unable to conceive naturally due to infertility issues in either partner caused by chronic or terminal illnesses, and health complications, the option of surrogacy, though somewhat costly, offers some reprieve. Zimbabwean couples facing infertility are not left out of the mix in all of this, as in recent years, many have embraced the option of surrogacy.
As surrogacy becomes more widespread, many countries have enacted legislation for the purposes of regulation. Zimbabwe is not one of these countries.
Although the country does not prohibit surrogacy, it has not laid down any legal framework to govern the surrogacy process. This leaves both the couple and the intending surrogate mother in a legal vacuum, wherein the parties are exposed to legal risks.
This article briefly considers the Zimbabwean legal stance regarding surrogacy and proposes a creation of a clear legal framework for surrogacy in Zimbabwe, while advising as to legal safeguards to be taken by couples intending to conceive via surrogacy in the interim.
WHAT IS SURROGACY?
In short, surrogacy is the process of carrying and delivering a child for another. Surrogacy may also be defined as a form of third-party reproduction in which a woman consents to carry a pregnancy for intended parent(s) (“commissioning parents”) who cannot conceive for medical reasons.
The arrangement is usually based on the agreement that the child will be given to the commissioning parents after delivery and may be classified into two types: traditional surrogacy and gestational surrogacy.
A traditional surrogate is defined as an individual who has a genetic tie to the child she is carrying. The surrogate acts as both egg donor and carrier. Individuals choosing to use this route, therefore, do not need to identify an egg donor because the surrogate uses her own egg. Typically through intrauterine insemination, the surrogate’s egg is fertilized by sperm of the intended parent or a donor.
Unlike a traditional surrogate, a gestational surrogate is defined as an individual who does not have a genetic tie to the intended child but agrees to carry the child on behalf of another individual or couple. Through in vitro fertilization, an embryo is created using either the intended parents own genetic material or that of a donor. This embryo is transferred to the gestational carrier to grow to term.
Additionally, surrogacy may be commercial or altruistic, depending upon whether the surrogate receives financial reward for her pregnancy. In case of altruistic surrogacy, a surrogate does not receive any monetary compensation and the majority of these agreements often involve close relatives of the intended parents.
Many countries frown upon commercial surrogacy, and only permit altruistic surrogacy arrangements. In jurisdictions like Belgium, Netherlands, and the United Kingdom, commercial surrogacy is prohibited. Conversely, in France, Italy and Germany, surrogacy, be it altruistic or commercial, is prohibited.
ABSENCE OF A LEGAL FRAMEWORK FOR SURROGACY AGREEMENTS IN ZIMBABWE AND ITS CONVERSANT RISKS
While surrogacy is not expressly prohibited in Zimbabwe, it also is not legally acknowledged, as there is currently no legal framework regulating surrogacy in the country. Unlike many other countries, Zimbabwe lags behind in surrogacy agreements entered into on a daily basis in the country.
Despite this, surrogacy has not been criminalized in Zimbabwe, since it is not defined in any written law as an offence and no punishment is prescribed for it. As such, if a person engages in surrogate motherhood or enters into a surrogate contract in Zimbabwe, such a person cannot be said to have committed a crime. The underlying problem, however, is in terms of legally defining the legal parentage of the child as well as the contractual rights and duties of parties to the surrogate agreement.
LANDMARK SURROGACY CASES: A LOOK AT USA
In jurisdictions such as the USA and the UK, surrogacy has raised issues mostly pertaining to
i. maternity status;
ii. potential undue financial or other pressures for the surrogate, and
iii. women’s constitutional rights over their reproductive choices and bodily autonomy, especially with respect to decisions regarding pregnancy management, termination, and selective reduction.
One such case is the In Re Baby M (1988) M, 537 A.2d 1227 (N.J. 1988) when the surrogate mother decided she would like to keep the baby.
The watershed Baby M case, which took place in 1987 in New Jersey, USA, was the first major legal skirmish concerning surrogate parent arrangements. Mary Beth Whitehead had contracted with William and Elizabeth Stern to act as a surrogate mother for them.
She was impregnated with an embryo (made by her egg was fertilized with Stern's sperm), and after carrying the child to term, she had a change of heart about handing the baby over to the couple. When Whitehead changed her mind, she offered to return the $10,000 payment, and attempted to keep the baby after the child’s birth. Whitehead then proceeded to sue for custody of the child raising the then-novel legal questions of enforceability of contract, maternity rights, and a custody determination.
The New Jersey Supreme Court ruled that the surrogacy contract was illegal and a violation of public policy. The Court rejected the proposition that a surrogate could contractually agree in advance or be forced by contract to terminate her parental rights. Instead it applied a “best interest” standard to decide who should have legal and physical custody of the child. Class differences were noted throughout the litigation, with a Guardian ad litem appointed to evaluate the parenting capabilities of each of the parties.
Ultimately, the New Jersey court ruled that the Sterns would be the better parents and should have physical custody of the child, with Mary Beth Whitehead remaining as the legal mother with visitation rights. Elizabeth Stern was allowed to adopt the child, a necessary step to secure her maternal rights.
Another case heard by a state Supreme Court took place in California in 1993. Johnson v Calvert (1993) 5 Cal. 4th 84 S023721 resulted in a contrasting ruling to the Baby M case. Mark and Crispina Calvert hired Anna Johnson to carry to term their genetic child. Anna Johnson ultimately sued for custody of the child. In a 6-1 decision, the California Supreme Court ruled that Anna Johnson had no parental rights to the child.
This was the first time a state court enforced a surrogacy contract. “It is not the role of the judiciary to inhibit the use of reproductive technology when the legislature has not seen fit to do so,” wrote Justice Edward Panelli for the majority. The court's only woman, Justice Joyce Kennard, wrote in a sharply worded dissent: “A pregnant woman is more than a mere container or breeding animal; she is the conscious agent of creation no less than the genetic mother, and her humanity implicated on a deep level. Her role should not be devalued.” The court has reaffirmed this finding several times since 1993.
The above cases are examples of what happens when agreements happen in vacuo, without any underpinning law, statute or regulation.
From the experience of other jurisdictions, surrogacy case law has addressed four principal issues to date:
i. balancing constitutional privacy and reproductive rights with public policy interests;
ii. the enforceability of surrogacy contracts;
iii. safeguards and professional duties of care owed in surrogacy arrangements; and
iv. the establishment and disputed parentage issues of children born through surrogacy.
LEGAL SAFEGUARDS FOR ENTERING AND ENFORCING A SURROGACY AGREEMENT
While efforts to enact a legal framework continue in Zimbabwe, parties interested in entering surrogacy agreements are advised to take certain safeguards in the interim.
Firstly, parties should ensure they have a written contract in respect of the surrogacy, delineating all rights and obligations of each party. Surrogacy agreements are like regular contracts and can be enforced accordingly since there is no law prohibiting the contract. A contract between the intended parent/s and gestational surrogate (and any spouse or partner) is an essential part of any surrogacy arrangement, and should be drafted and negotiated by separate, independent legal counsel experienced in reproductive law.
Having separate, independent legal counsel protects each of the respective parties or couples, helps avoid conflicts of interest, and is not only a generally applicable ethical rule for legal representation but uniformly recommended or required for surrogacy arrangements.
Amidst other requirements, most contracts require two key elements to make them valid and enforceable: All parties must be in agreement (based on an offer and acceptance), and something of value, for example monetary payment, must be exchanged to serve as a consideration. Like most jurisdictions, in Zimbabwe, once a contract satisfies the required elements, it becomes enforceable. Thus, although there is no law or statute regulating the act of surrogacy in Zimbabwe, surrogacy contracts and agreements remain enforceable.
Additionally, after the birth of the baby, the commissioning couple should consider obtaining a custody order in Zimbabwe to be certain their parental rights are recognized.
CONCERNS AROUND SURROGACY IN ZIMBABWE: PUBLIC POLICY
One concern that will remain is whether the courts will enforce surrogacy contracts, on the grounds of public morality and policy grounds. While it has been argued that the standpoint of morality and public policy may present a contrary view on the enforcement of surrogacy contracts; it does not change the fact that surrogacy contracts fall under legally enforceable agreements. There is therefore recourse in the courts for parties and a good possibility that surrogacy agreements may be enforced in our national courts when put to judicial test.
At a glance, surrogacy seems like an attractive alternative as a poor surrogate mother gets very much needed income and a woman or couple unable to conceive get their biologically related baby. In the absence of proper regulation of the process, there remains a danger in the exploitation of surrogate mothers and intended parents by middlemen and agencies.
Looking at the experience of surrogate mothers, particularly those of a poor, rural and illiterate background, they are often persuaded to enter into these arrangement by their spouses or middlemen for earning easy money. These women have no say on the decision regarding their own body and life.
Further, in the absence of legislation, there is no provision for much needed psychological screening and counselling, both prior and after the end of the surrogacy arrangement.
The worst outcome for unregulated surrogacy arrangement lies with the surrogate in the event of an unfavourable outcome of pregnancy. In these instances, they are unlikely to be paid, and there is often no provision for insurance or post-pregnancy medical and psychiatric support for them.
All this evidences an urgent need for the framing and implementation of laws for the parents and the surrogate mothers in Zimbabwe.
It is the opinion of the author, that the growth of both traditional and gestational surrogacy signifies expanded family-building options for potential intended parents and should be recognized as legitimate forms of assisted reproduction in Zimbabwe.
This will require, as a first step, the modelling of an Assisted Reproductive Technology (ART) Bill to enact a legal framework for surrogacy which is compatible with international best practices and to thereafter, ensure the Bill's passage.
In sum, this article advocates for the introduction of legislation to guide the rapidly growing surrogacy market in the country. There is a pressing need for Zimbabwe to enact legislation regulating surrogacy and other forms of Assisted Reproductive Technology (ART) methods to curb possible abuse or exploitation of these arrangements. This more so as the surrogacy market continues to grow. There will always be a desire for children, causing a virtually unlimited market with no regulations.