Pioneering surrogacy case tests local judiciary
Mpho Mokwape | Friday July 22, 2016 13:15
With many couples struggling to conceive, the evolution of medical science has come as a Godsend, providing many options and opportunities over and above adoption.
Surrogacy is the on the rise worldwide and recently the debate over the practice has engrossed public debate, via a case currently going through the judiciary. Surrogacy is an arrangement or agreement where a woman carries a pregnancy on behalf of a separate couple who are unable to have children on their own. The practice involves fertilising an egg outside the body or in vitro fertilisation, with the resultant embryo transferred to a surrogate being the woman who will carry the pregnancy.
The practice in Botswana, is generally unheard of and unregulated, but the Court of Appeal case has brought it to the public dominion, exposing the local laws’ lack of legal precedence.
According to facts of the case, Gofamodimo Sithole and Lekoko Baatweng married on March 11, 2005 in community of property. According to papers before the courts, at the time of the marriage, Baatweng knew his wife had no womb as it had been removed on account of a complication with a previous child.
As the marriage progressed, the couple felt the need to have children, and after exploring a number of options and consulting a renowned gynaecologist in South Africa, decided to go the surrogacy route.An arrangement was made with a surrogate, where the woman would be paid P1,000 during the period of the pregnancy and a once-off sum of P50,000. A doctor was engaged who harvested sperms from Baatweng and eggs from Sithole.
Five embryos were created and ultimately, one embryo was frozen in a laboratory in South Africa waiting to be implanted in the surrogate mother’s womb.
“By dint of misfortune, the marriage between the parties has broken down irretrievably resulting in a divorce,” court papers state.
“The agreement between the parties (at divorce) did not take the fate of the frozen embryo into account in the event the parties divorced.
“There is therefore a contest between the parties as (to) what is to be done with the frozen embryo.”
According to the court, Sithole wants the embryo implanted leading to a birth, while Baatweng wants the embryo destroyed.
“The plaintiff (Sithole) refers to the embryo as my child and wants it to be given a chance to live. The defendant says he had agreed to give birth to the child only in marriage. He says now that the plaintiff has sought divorce, he is no longer willing to be father of the child and seeks that the embryo be disposed of.”
At the High Court, Sithole won the right to proceed with implantation of the embryo, leading to pregnancy. However, Baatweng appealed the case to the Court of Appeal (CoA).
Last Thursday, a CoA bench noted that it did not have any jurisdiction over the frozen embryo and any other agreements made between the couple. The country’s highest court advised that the matter should be taken to South Africa, where the embryo is. The CoA judges noted that the case was complex as there was no law in Botswana specifically dealing with surrogacy. Judges said if they had to deal with the matter, they would have to refer to other jurisdictions and international law on the matter.
Judgement is due on July 28, 2016.
According to documents in South Africa, confirmation of surrogacy agreement is governed by that country’s Children’s Act. Botswana’s laws are silent on the matter.
The SA act provides the legal framework for willing parties to facilitate surrogacy agreements with the provision that the confirmation by the High Court of all surrogacy agreements is required to render any such agreements valid.
However, even with this law, the couple will still face a challenge as Baatweng’s lawyers have argued that the original surrogacy agreement could have violated the law in that country.
Local couples will be eyeing July 28 for clues on the development of surrogacy in Botswana.