In Practice

Legal access to surrogate motherhood in illness that does not cause infertility

Donrich W Jordaan

Abstract


The threshold requirement for surrogate motherhood entails that a commissioning parent or parents must be permanently unable to give birth to a child. The question of whether a commissioning mother who suffers from a permanent illness that does not cause infertility as such, but that renders pregnancy a significant health risk to such mother and/or to her prospective child in utero, has arisen in practice. In this article, I propose that the inability to give birth to a child as per the threshold requirement should not be interpreted narrowly as referring only to a commissioning parent’s inherent inability to give birth to a child, but should rather be interpreted broadly as referring only to a commissioning parent’s effective inability to give birth to a child – allowing consideration of the medical sequelae of pregnancy for the commissioning mother and her prospective child. I argue that such a broad interpretation of the threshold requirement is compatible with legislative intent and case law, and is demanded by our country’s constitutional commitment to human rights.


Author's affiliations

Donrich W Jordaan, Department of Jurisprudence, College of Law, University of South Africa

Full Text

PDF (58KB)

Keywords

Surrogate motherhood, threshold requirement

Cite this article

South African Medical Journal 2016;106(7):684-685. DOI:10.7196/SAMJ.2016.v106i7.10668

Article History

Date submitted: 2016-02-11
Date published: 2016-06-17

Article Views

Abstract views: 1214
Full text views: 409

Comments on this article

*Read our policy for posting comments here