How surrogacy contracts set health conditions, rights waiver after birth

On November 4 last year, Sukhija Sarita filed a 15-page agreement in court signed with a surrogate mother and commissioning parents.

The document lifts the veil on what happens and what is required of the two parties.

For starters, both the parents and the surrogate mother have to be adults.

The interested parent must have expressed interest to have either their sperm or egg placed into the uterus of the surrogate mother, while she (the carrier) must be willing to conceive.

In the case

before Justice Bahati Mwamuye (read story above) between a couple and Myra In Vitro Fertilisation Clinic — owned by Dr Sukhija — the surrogate mother was an adult single mother of one child.

It was indicated that the minor was alive and healthy, and was born through normal delivery.

“She has agreed to become a surrogate mother as contemplated herein out of her own free will and volition and for that purpose undertakes to undergo medical treatment and surgical operations as may be medically prescribed and necessary in the course of the process of giving birth to a child,” the agreement reads in part.

The other issue is an assurance that the surrogate mother does not have HIV/Aids or hepatitis B and C, or chronic diseases.

In addition, the agreement includes an awareness of the medical processes and complications that come with pregnancy and childbirth, including post-delivery complications.

The surrogate mother has to affirm that she has no gynaecological issues and is in good health to give birth to a child for the commissioning parents.

“She will co-operate and undertake all kinds of medical tests and take all precautionary measures and care as may be necessary and advised by the doctors during the period of her pregnancy carrying the child for the commissioning parents and for that purpose make herself available as and when required by the attending doctors,” the document reads.

In the meantime, she commits that she has fully agreed to the terms set out to avoid any future misunderstandings and she is fully aware that after the birth of the child, whether single or twins, she will have no right or authority over them and that she shall hand over the child to the parents.

She is required to remain silent about the agreement forever and not sue.
The agreement also prohibits the surrogate mother from having sex before the embryo is placed, and afterwards, or from using sex toys during the pregnancy, and from terminating the baby.

In case of any complication, the authority to terminate the pregnancy is left to the attending physician or delivery may be through Caesarean section.

She has to give birth at the hospital of choice of the commissioning parents.
In the meantime, if the foetus carried by the surrogate mother has been determined by the treating medical practitioner to be physiologically, genetically or chromosomally abnormal, the decision to terminate or not to terminate the pregnancy is to be made by the commissioning parents.

On the other hand, the parents sign that the agreement is mutual and no money has been issued or paid to the surrogate mother for the exercise.

However, any money paid to her ought not to be deemed as compensation.

“They have a legal obligation to accept the child that the surrogate mother delivers through intensive facilitation and are solely responsible for arranging necessary legal and travel documentation for the newborn child.

The child born through the in vitro fertilisation (IVF) procedure would have all the inheritance rights of a child of the commissioning parents as per the prevailing law,” the agreement continues.

They are required to bear all the costs and expenses incurred by the surrogate mother to fulfil the agreement and take care of her until she gives birth and for routine post-natal care.

They also commit that there is no guarantee of a positive pregnancy and getting twins or more out of a single embryo transfer.