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South African court sets out guidelines for surrogacy arrangements

14 November 2011
Appeared in BioNews 633

A High Court in South Africa has set out guidelines for judicial approaches to surrogacy arrangements in light of new family law legislation, which came into force last year.

The case concerned an application for confirmation of a surrogacy arrangement brought by the commissioning parents – Dutch and Danish citizens – but domiciled in South Africa. They were introduced to a surrogate by an agency known as Baby-2-Mom - an online egg donation agency that had operated since 2007 – which confirmed no funds had exchanged hands. It is understood the surrogate's gametes will not be used.

In granting the application, Judge Lotter Wepener in the North Gauteng High Court in Pretoria also invited the Pretoria Bar, the Law Society and the Centre for Child Law to make submissions on the correct approach in a number of scenarios. This included where the genetic material used is not that of the parties involved, where same-sex couples apply for a surrogacy agreement, and what factors should the courts consider in determining the 'best interests' of the child.

On same-sex surrogacy arrangements, the court said care should be taken that different tests are not applied which could be discriminatory. For example, it said some cases had required same-sex couples to demonstrate a 'maternal influence'. 'The mothering of the child is a function that very often does not have anything to do with the gender of a parent', the judge explained. The court also confirmed the child's best interests are of 'paramount importance in every matter concerning the child' both under the South African constitution and the new laws.

In determining 'suitable persons' to accept parenthood under the new laws, the court said: 'The individual idiosyncrasies of judicial officers should not determine the matter nor should the dominant prevailing view in society be necessarily decisive of the matter. One person's idea of a suitable parent may vary significantly from that of the next person'. Factors the courts should look at when asked to confirm a surrogacy arrangement under the new laws include the ability of the parents to care for the child emotionally and financially, and to 'provide an environment for the harmonious growth and development of the child'.

The court expressed concerns that the 'involvement of agencies in the introduction of surrogate mothers can also easily lead to abuse'. It said with regard to international surrogacy practices, 'it becomes clear particularly in countries such as ours with deep socio-economic disparities and the prevalence of poverty, that the possibility of abuse of underprivileged women is a real and ever present danger'. 'Ideally the involvement of agencies should be the subject of regulation', said the judge.

South Africa's provisions on surrogacy arrangements under the Children's Act 2005 came into force in April 2010. 'The legal implications of this relatively new development in our law could be rather complex and could have far reaching consequences for everyone involved', said the court. 'The Act provides in broad terms for the legal requirements attendant upon entering such agreements as well as requiring the confirmation of the High Court to render such agreements valid', it said.

In South Africa, altruistic surrogacy arrangements are only enforceable subject to confirmation by the High Court. Judge Wepener explained: 'It is a contract of a special kind, unique if regard is being had to its subject matter'. The formal requirements of a valid surrogate agreement are set out under the Act and include the requirement that at least one of the commissioning parents party to the agreement is domiciled in South Africa.

'If you are a French person or a foreigner here only for six months, it is not going to work, unless you live in South Africa for an indefinite period', explained Anthony William, the lawyer for the couple, as quoted by the South African Press Association. 'This judgment is important because it sets the parameters and the guidelines'.

Commercial surrogacy arrangements are not enforceable under South African law and surrogates may only claim pregnancy-related expenses.

Ex parte: WH and Others (29936/11) [2011] ZAGPPHC 185
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