One of the often overlooked areas of law is reproductive health. The Zimbabwean society has adopted assisted reproductive technologies such as in vitro-fertilisation (IVF) and artificial insemination. IVF involves the extraction of male and female gametes, manually combining them in a laboratory dish and then transferring the fertilised gametes into the womb of the female so as to develop into a foetus. This method is mainly used where the woman’s womb is capable of carrying a pregnancy to full-term. However, where the woman’s womb is incapable of carrying a full-term pregnancy, other couples may consider commissioning a third party (a surrogate) to carry and deliver the pregnancy on their behalf. This is normally referred to as gestational surrogacy in which the surrogate is not biologically linked to the child to be born. Her role would be to carry the gametes fertilised through IVF in her womb through the process of artificial insemination. On the other hand, a couple might consider traditional surrogacy in which a surrogate might be inseminated with the male gamete, carry the pregnancy to term, give birth and surrender her parental rights. This method is akin to the common Zimbabwean cultural practice wherein a couple with conception problems might be assisted by a close relative to bear children on their behalf. Though surrogacy is not common in the Zimbabwean society, it would be necessary to consider its legal implications as an assisted reproductive health technology since IVF is already being used to assist childless couples.
Most of the legal issues that arise in surrogacy agreements are with regard to parental rights. In some cases a surrogate will not want to give up a child after its birth especially where she is a traditional surrogate. A good example is the American case of baby M in which a woman who had undergone traditional surrogacy refused to give up her parental rights after the birth of the child on the basis that she was its biological mother. After considering what was in the best interests of the child, the court awarded custody to the father of the child and visitation rights to the surrogate.
In countries such as South Africa where surrogacy agreements are legally recognised, the requirements are clearly set out in its legislation, particularly the Children’s Act. On the contrary, Zimbabwe currently does not have specific legal framework for surrogacy agreements. The Children’s Act [Chapter 5:06] makes no provision for surrogacy agreements. However, the Constitution of Zimbabwe Amendment (No.20), 2013 provides in section 81 (3) that a child’s best interests are paramount in every matter concerning the child. Based on that constitutional provision it may be said that any surrogacy agreements must be entered into with the child’s best interests in mind.
Should there be any amendments or any enactments for the purposes of regulating surrogacy agreements, the law should require that the spouse or the partner of the surrogate to consent to the surrogacy agreement. All the parties should agree on who it is that the child will be biologically related to and how the parental rights will be exercised. Also the surrogate should undertake not to undergo medical procedures without informing the commissioning parents. Furthermore, the commissioning parents should undertake to take full responsibility of the child’s welfare once it is born, as well as the compensation to be given to the surrogate. The law should also be flexible enough to allow the parties to incorporate any other clauses which they may consider necessary to their surrogacy agreement.
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