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Divorced couple fight over frozen embryo

The legal position of surrogacy and its legality in the country would be put to test during the July session of the Court of Appeal (CoA) when a divorced couple fights over a frozen embryo.

Surrogacy, an arrangement to carry out a pregnancy for intended parents has never been popular in Botswana and is mostly heard in overseas countries where most celebrities opt for its option.

Now when the CoA session resumes on Thursday, the case is expected to be one of those that would challenge the status quo of the country and individuals on surrogacy. Though the case is premised on two couples that find themselves fighting before the court following a divorce while the process of surrogacy that they had opted for was already in motion, it would be interesting to see what our legal minds think of the infamous move and its legality in the country.

In this particular case, Gofamodimo Sithole and Lekoko Baatweng are appearing in this matter as one of them seeks to get clarity as to what happens to a frozen embryo since the divorce took place.

The court will also give clarity on whether surrogacy was legal in the country and give determination as what should happen to the frozen embryo since the parties have been divorced.

The contention between the two is what is to be done with the frozen embryo. The woman prays that the court enforces the surrogacy agreement and order that the process proceeds to its logical conclusion, resulting in the birth of the baby, while the former husband prays for the embryo to be destroyed as he only agreed to the child only in marriage.

According to facts of the case the couple married on March 11, 2005 in community of property and at the time, the husband knew that the wife had no womb since it

was removed on account of a previous complicated pregnancy during which she gave birth to a still-born child.

As the marriage progressed, the couple saw the need to have children, they explored a number of options and later decided to go the surrogacy route.

According to court documents, the parties entered into a verbal agreement to explore alternative reproductive methods of conceiving a baby or babies and later consulted a renowned gyaenacologist in South Africa.

“The couple agreed to go the surrogacy route. As part of their agreement to have a surrogate child, the parties contracted a woman of Zimbabwean origin to carry the baby. According to the then wife, the agreement was that the couple would live with the woman before and during the pregnancy to sustain her and pay her a monthly stipend of P1,000. She would at the same time also do household chores for them.

Upon delivery of the baby, the couple was to pay the surrogate mother a once-off sum of P50,000 then get out of the picture,” read the documents.

Following the harvesting of the egg and sperms by the doctor for fertilisation process, which successfully materialised into five embryos, the documents further state that now one embryo was available for implantation into the womb of a surrogate mother. It is frozen in a laboratory in South Africa.

Meanwhile, the court has already indicated that there was no statute regulating the institution of surrogate parenthood in the country therefore the matter was dealt with at the High Court using both the common law and the international human rights conventions as well as case law from other jurisdictions.




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