Adriana: What has changed after the law, after the new law?
Jenny: well, there’s several things that have changed. There’s now a dedicated chapter on surrogacy the was promulgated with the new Children’s Act on the 1st of April 2010 and that affects surrogates and it also affects commissioning parents. One of the most prominent aspects is that commissioning parents need a recognized court order which is approved by the High Court that they approving this contract. So there is a lot of legalities that need to happen before any fertility treatment can happen, that’s the first thing. The new Act also makes provision for the type of women that can come forward to become surrogates. They need to have had at least one child before and they need to have at least one living child. So essentially this confirms that they’ve got proven fertility and I think it also have to address some of the emotional issues that at least they’ve got one child and that they won’t have a longing for this specific child.
Adriana: this new law made things easier or more difficult for you and for the couples?
Jenny: in terms of the responsibilities and rights for the child, that is very clear cut and that’s a welcome change. In terms of the other aspects like the compensation for surrogates or the lack of the fact that surrogates may no longer profit from a surrogate agreement. That’s made it very very difficult because it means that women essentially cannot profit then why should they come forward and not getting anything for it. It means that we have had a drop in a number of women coming forward for surrogates. It also makes the discussion very difficult because commissioning parents want to give something, they want to give a gesture of thanks and…
Adriana: they can’t because they can get arrested
Jenny: it’s actually a criminal offence and they could go to jail for it. The downside to it as well is that it makes the relationship very difficult. Because in my view money makes things very clear, it makes a contractual obligation. It makes it very clear who’s doing what so if you are exchanging money, it’s thank you and your deed is done. Whereas if there is now no money exchanged, the commissioning parents are going to have this feeling of gratitude that they forever have to hold for the surrogates because she’s done this but there can’t actually give her anything. So I think it makes for an incomplete contract I also think it’s a little unfair in that regard.
Adriana: you think surrogate should have the right to receive some money.
Jenny: I definitely think so because she’s coming forward, it’s not an adoption situation where a woman is desperate and she needs someone to take off this baby responsibility for her because she doesn’t have the means. It’s a woman who’s actually has thought through this process, who is emotionally secure and understands what she needs to do and she wants to make a difference. So I don’t think there’s anything wrong with another couple making a difference in her life.
Adriana: and she goes through a lot during this nine months just to make some couple happy.
Jenny: she certainly goes through a significant amount of effort and of dedication. Firstly she needs to go through all the screening which involve medical tests, invasive procedures for a woman. She goes through an extensive psychological assessment. Of course none of these costs are for her account, but it’s still her time and its her efforts and its her commitments.
Adriana: injections everyday
Jenny: once the fertility treatment starts, she’s got to actually inject herself. If the pregnancy is successful she’s gotta go through this process for the first three months of pregnancy. So it’s a lot of effort that she’s gotta put herself out there for and it’s a decision about whether she is going to allow this commissioning parent which is essentially a stranger to participate in these personal processes thay may involve scans and early stages of pregnancy it’s internal scans, so it’s giving a lot of yourself.
Adriana: we know that with this new law you cant give money, you cant receive money because you can be arrested but can we be blind to believe that nobody does that nobody does an agreement on the side and can give money to surrogates.
Jenny: well in my agency the law is communicated very clearly to commissioning parents and to surrogate mothers and I state this upfront. We also tell them very clearly that no amounts of money exchanged for profits can be included in the contract. So to the extent that this happens I’m not aware. I know that people…
Adriana: it can happen…
Jenny: it can happen, exactly, and that’s also the downside about because the roll of an agency is to assist with the regulation and to assist with compliance but now if the law is so restrictive that it’s forcing people into an unnatural situation, what you are saying is very likely and now there is no way to regulate that as well.
Adriana: because of course you are not going to do a written agreement, but you can do a verbal agreement.
Adriana: without no one knowing, you not knowing, the law not knowing
Jenny: exactly, and that also leaves room for exploitation of either the surrogates or the commissioning parent, which is not a positive situation.
Adriana: do you think some women still after the law, still expect to receive something. Maybe a gift after everything is finished.
Jenny: I’m sure they do because it’s expressed and explained, it’s a great commitment. It’s a lot of time that’s a lot of time that’s involved. And also not just0 the time and the efforts and the exposure your body goes through, I often tell people that you need to find the person that’s really got the heart and soul for this. For example, what I mean is once the couple have a court order they’ve incurred a lot of expense and they gone through a lot of time to get this court order specific to them and this particular surrogate. Now after the court order she may change her mind. Now legally she’s bound to participate for the time period that the court order specifies. But I say to a commissioning parent there’s no point in trying to force a woman through this because she also has to have the right heart. Her spirit is got to want to be receptive to wanting to be pregnant. So its about that right process as well. Its just a warm relationship that’s got to develop. Putting these restrictions in I think its very … I don’t think its constitutional for both parties.
Adriana: What do think is the biggest challenge in finding the right surrogate?
Jenny: I think the greatest challenge in terms of finding a surrogate and also finding the right commissioning parents is certainly a personality match and a click of this person feels right for one another. Sometimes people tell me they are happy to become surrogates but only for the right person. So people might specify that they want the person or surrogate to live within a close proximity to them or they might want the surrogate or the commissioning parents to be a specific race and they also, surrogates also sometimes specify about the sexual preference of the commissioning parent. They may not want the commissioning parent to be a gay couple. So firstly at a high level its being respectful for what is right for both parties and this is so that there is no uncomfort that presents itself at the first meeting or embarrassment because the person is not comfortable with the profile of the other.
Once we’ve got past this the role of the agency is to guide them and to facilitate through initial discussions so its assisting with agreement aspects like should or will the surrogate breastfeed? What will happen I n the event of prematurity of the baby? What exactly happens at the birth of the child? Is the surrogate present in terms of, does she hold the baby? Does she go under complete anesthetic and goes to sleep pregnant and wakes up and the baby’s not there? What happens after the pregnancy so that she also feels she’s been looked after emotionally? Its things like that. What kind of a relationship will they have during the pregnancy? How much support? Everything is agreed upon before. It’s so important because all these things need to defined and explained.
Anther very important one that people who conceive naturally don’t need to address is, what will happen in the event of deformity? At what point do you abort or don’t you abort? You need to have agreement on these things so that both parties feel they are covered and they are looked after. So, the initial discussions are quite extensive and its encouraged so that in the event of one of these situations materializing both parties know exactly where they stand and how to address the situation. They can refer to their contract or they can regroup and assess whether they should change their decision at that point based on how they both feel.
Adriana: How long does this take – all the process. Finding someone, doing the agreements…
Jenny: Well we’ve been very fortunate that women have come forward and volunteered as surrogates. As we said we’ve had a drop at the agency since the new legislation, but essentially we are able to help people without a waiting list so people can be assisted with the surrogate immediately. Then it’s a matter of guiding them in terms of all these discussion points. Because we’ve had a lot of experience as one of the first agencies to facilitate surrogate agreements in the country we’ve built up an extensive list to help them and many feel that after the first meeting they can come to an agreement or they can not.
The next step is the psychological assessments of both parties to first of all confirm their readiness with one another and their readiness for this process. So at any one of these steps they might fall off or the agreement might not proceed. The next step is the medical screening, can happen simultaneously to the psychological screening because both these screening aspects need to be confirmed to proceed.
During this whole process they can start to give necessary input to the lawyers to compile the contract and he would conclude documents that confirm your ID that you are indeed a real person, identity documents of children of the surrogates, address and things like that because that’s one of the other aspects because that’s another part of the legislation that only persons with South African domicile may become commissioning parents and may become surrogate mothers. So they need an address and confirmation of intent that they will permanently reside in South Africa. So the lawyer will put together the contract and this is then taken to court. The courts approve the psychological assessments the medical confirmation and the contract and they may actually return it for further input or for further documentation. Of late the judges has actually requested new input such as police clearance and more thorough psychological assessments and a detailed accounts of costs.
Adriana: I’m going to be very realistic. If I can not get money in exchange why would I be a surrogate?
Jenny: You know, South Africa is a very special place and I’m very very blessed to run this agency because I come across angels everyday who come forward and want to do this. When I started the agency and got my first egg donor application I was dying to see her picture because I just wondered what does this woman look like, what does a woman look like who wants to make this difference. Its really fantastic people, who have seen an aunt or a sister or a mother battling to conceive. Also a woman who’s thinking how can make a difference. Maybe she’s not educated. She doesn’t really have a job, she doesn’t have a great motivation but she’s thinking how can I make a difference? And she does this and she is suddenly put on a pedestal because she’s such a special person for doing this. She’s making the most amazing difference in someone else’s life, who wouldn’t have had the chance to conceive without a person like her.