Wombs for rent? Surrogacy as an option for having your own biological children

By: Beaven (Llb, Llm Sa)

Surrogacy is necessarily one of the most contentious and complex issues in legal terms, invoking several legal dilemmas for both the commissioning couple and the surrogate mother alike. Surrogacy is an arrangement by which a woman gives birth to a baby on behalf of a woman who is physically unable to have babies herself, then gives the baby to her. The woman who agrees to carry the child is called a surrogate mother. Depending on the agreement, the child is usually handed over at birth. Of necessity therefore, an agreement encapsulating all the necessary information to be known by both parties must be drawn and confirmed by the High Court, as the upper guardian of all minors.

In Britain, for instance, the Surrogacy Arrangements Act was promulgated in 1985. However, 36 years later, there are no surrogacy laws in Botswana and Zimbabwe. In South Africa, altruistic surrogacy is legal and laws are in place to govern surrogacy. Clandestine surrogacy is taking place in Botswana, and there are many examples of potential surrogate mothers who are available as at 3 July 2021. According to https://www.findsurrogatemother.com ,Kefilwe from North East of Botswana, who registered on the site on 9 October 2020 she says “I want to help those who desparately want to have children to experience the joy of being a parent”. Boikhutso from Kweneng registered on 24 March 2020 and says “I can only imagine myself not being able to have my own baby and only imagine how devastating it must be…” In Botswana, Zimbabwe and South Africa, the best interests of the child are considered paramount. Surrogacy can be traced back as far as ancient Biblical times, to when Abraham and Sarah used their Egyptian maid Hagar to have a baby for them although this is frowned upon by contemporary civilised societies because it looks misogynistic in the sense that it demands physical intimacy of the parties involved, running the obvious risk of infidelity and marriage wrecking, not to mention disease transmission.

The advent of Assisted Reproductive Technologies(ART) has been a welcome development, which has seen many countries now accepting surrogacy. ART includes pregnancy by means other than sexual intercourse and includes gamete donation, in vitro fertilisation, intracytoplasmic sperm donation, and intrauterine insemination.

With the rapid advancement of technology, some of the conditions of infertility deemed irreversible today, may actually be reversible in the near future. Recent studies have shown that it is possible to produce sperm cells using stem cells. The research was done on infertile male mice and worked, with human tests pending. If this works, then the condition we say is irreversible today, may be reversed soon. Scientists “hope to develop a human sperm making biological machine.” Scientists are also busy trying to develop artificial wombs. If successful, these will go a long way in alleviating the problem of irreversible infertility to those women who have had a hysterectomy or other womb related complications preventing them from carrying their own children.

Since the advent of ART it is possible for two women to be both the legal mothers of one child, one mother being the genetic mother and the other one being the surrogate mother. The women contribute, one through gametes and the other through hormones, and the womb, making them both biological mothers of the same child. This provides an opportunity to the older women getting married and past the recommended age to have their own genetic children, and to infertile men as well.

From the late 1970s, when the first surrogacy agreement was

made, surrogacy has never stagnated, but has proliferated to the extent that it increased an estimated ten times higher than it was a decade ago in Britain. The challenge of the socio-economic environment, culture, religion and morality should be addressed because some surrogates will be susceptible to ostracism from society, which may psychologically demean and ridicule them. Standard of Botswana (18 November 2019), Botswana is on the verge of commercial surrogacy, women trying to escape poverty are resorting to offering their wombs for rent in return for money or other promises for a better life. The same source says that, irrespective of the status quo that there are no laws regulating surrogacy, some Batswana women have outpaced Botswana legislators and the judicial system which have fallen far behind on issues of surrogacy. The question is as to whether or not Botswana would like to continue with this trajectory of legal uncertainty on surrogacy, it would be better for it to be clear whether surrogacy is legal or illegal. When will the legislative bodies act on closing this legal lacuna, surely there is a gap which needs to be closed in order to prevent this legal uncertainty? billy.bliss@live.com