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[2021] ZAWCHC 69
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APP and Another v NPK (17962/2020) [2021] ZAWCHC 69 (11 March 2021)
REPORTABLE
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 17962/2020
In
the matter between:
APP
1
st
Applicant
LDP
2
nd
Applicant
and
NPK
3
rd
Applicant
Coram:
Bozalek J
Heard:
11 December 2020
Delivered:
11 March 2021
JUDGMENT
BOZALEK
J
[1]
The
applicants in this matter have entered into a written surrogate
motherhood agreement and seek an order confirming its provisions
in
terms of sec 292 of the Children’s Act, 38 of 2005 (‘the
Act’). Section 292 of the Act provides that any surrogate
motherhood agreement must be in writing and confirmed by the High
Court which must be satisfied that the requirements of sec 292(1)(a)
to (e) are satisfied and, further, that in terms of sec 293 the
written consent of the husband, wife or partner of the commissioning
parent and surrogate mother to the agreement have been obtained.
[2]
Section
295 sets out further requirements of which the Court must be
satisfied before confirming a surrogate motherhood agreement,
the
first of which, sec 295(a), is that ‘
the
commissioning parent or parents are not able to give birth to a child
and that the condition is permanent and irreversible’
.
When the matter was first called before me on 11 December 2020 it was
this requirement which occasioned difficulty.
[3]
The
first applicant is the second applicant’s wife. The couple have
two children and have reached an agreement with the third
applicant
that she will be a surrogate mother for their proposed third child.
The surrogacy agreement provides inter alia that
the eggs of an
anonymous egg donor will be used and the gametes of the second
applicant (first applicant’s husband) will
be used to create
embryos for the artificial fertilisation process.
[4]
The
first and second applicant’s first child was born of a
surrogacy process in 2013 after the couple were medically advised
to
make use of the assistance of a surrogate mother. However, their
second child, born in 2014, was the result of a natural pregnancy
i.e. born without any surrogacy process being undergone. It is now
the first and second applicant’s case that another natural
pregnancy would be too dangerous both for the first applicant and the
foetus and therefore the parties wish to use the surrogacy
process.
[5]
On
the face of it the wording of sec 295(a) is unequivocal, namely, that
the commissioning parents ‘
are
not able to give birth to a child and that the condition is permanent
and irreversible’
.
Both the papers in this matter and the submissions made at the first
hearing took little account of the fact that, prima facie,
the first
applicant is able to give birth to a child, as proved by the birth of
her second child, and therefore that the Court
might well be
disqualified from confirming any surrogate motherhood agreement.
[6]
Applicants’
counsel was therefore granted an opportunity to file supplementary
submissions on the scope or interpretation
of sec 295(a), more
particularly whether it should be narrowly interpreted or given a
more purposive interpretation. In due course
written submissions were
received which dealt also with surrogacy regimes in other countries.
[7]
In
summary the applicants’ case is that as a result of various
medical and psychological conditions any further attempt by
the first
applicant at pregnancy will be life-threatening. Her medical
difficulties are both permanent and irreversible and their
cumulative
effect is that, for all practical purposes, the first applicant’s
‘
condition’
renders her unable to give birth to a child. The second leg of the
applicant’s argument is that, properly interpreted, the
requirement stipulated by sec 295(a) is not absolute in the sense
that it must be a physical impossibility for the commissioning
parents to give birth to a child but also covers cases where the
pregnancy will endanger the mother’s life or that of the
foetus.
[8]
I
shall deal firstly with the first applicant’s medical and
psychological conditions. The applicant is a 45-year-old professional
woman who suffers from post-traumatic stress disorder and a recurrent
depressive disorder. She has been taking a range of psycholeptic
medications in high doses for these conditions for the past 15 years
and has been advised by medical practitioners that there is
an
increased risk of congenital abnormalities with the usage of these
medications during pregnancy. The first applicant also suffers
from
hypothyroidism and diabetes for which she takes chronic medication.
During her natural pregnancy in 2014 her psycholeptic
medication was
reduced and altered to allow for medication which was safer to use
during pregnancy. The first applicant conceived
only after undergoing
five in vitro fertilisation treatments and she experienced a
complicated and difficult pregnancy which became
life-threatening.
She suffered from hypertension and gestational diabetes during her
pregnancy and also developed placenta previa
and was hospitalised
from 32 weeks. She underwent an emergency caesarean section and
suffered a significant amount of blood loss
during the delivery
requiring a blood transfusion and a further four surgeries post birth
as a result of infection.
[9]
Dr
Laura Graves, the first applicant’s obstetrician and
gynaecologist, filed a report confirming the above facts and stating
that some of the known adverse pregnancy outcomes of the medication
which the first applicant takes are pre-term labour, low birth
weight, poor neo-natal adaptation and increased risk of congenital
abnormalities. Efforts to stop the first applicant’s medication
has resulted in acute deterioration in her condition. Dr Graves
regards the first applicant’s psychological condition as
a
permanent, irreversible one which necessitates the use of a
surrogate. She also confirmed the difficult pregnancy which the first
applicant experienced in 2014 following an assisted conception. Dr
Graves has advised the first applicant not to attempt to carry
another pregnancy as this will be life-threatening. The first
applicant is now older and is more at risk of gestational diabetes
recurring and early onset pre-eclampsia which will threaten both
foetal and maternal life, and of the life-threatening complication
of
a repeat placenta previa with possible morbid adherence.
[10]
The
first applicant’s condition was also reviewed by Dr Siegfried
Heylen, a reproductive medicine specialist, whose patient
the first
applicant is. In his opinion the first applicant’s physical and
psychological ailments represents a permanent and
irreversible
condition and surrogacy is the only way for the first and second
applicants to have a child biologically related to
at least one of
them.
[11]
Turning
to the legal position, it would appear that the ambit of sec 295(a)
has not been the subject of a considered judgment by
our Courts. In
Ex
parte: WH and Others
[1]
a full bench of the North Gauteng High Court delivered a judgment to
determine and provide guidelines on how applications for the
confirmation of a surrogacy application in terms of sec 292 of the
Act should be dealt with and, in so doing, dealt with certain
constitutional and legal issues. Although not required to interpret
the scope of sec 295(a), certain of the Court’s comments
suggested that a narrow interpretation of that section would be
inappropriate. Inter alia the Court stated as follows:
‘
Most
people opt for surrogacy because they cannot conceive or carry a baby
to full term or on account of the risk that the mother’s
life
will be endangered by pregnancy’
[2]
.
[12]
It
is of some value to have regard to legislative approaches to this
question in other parts of the world.
Greece
[13]
Greece
is the only EU Member State with a legislative framework governing
surrogacy similar in its provisions to that contained
in the
Children’s Act
[3]
. The
Greek Civil Code provides that a woman is entitled to resort to
surrogacy only if she is unable to conceive a child or bring
a
pregnancy to term, evidence of which must be presented to authorise
the surrogacy. An EU study published under the title ‘A
Comparative Study on the Regime of Surrogacy and EU Member States’
[4]
sets out what the acceptable reasons for a surrogacy would be in
terms of Greek law. Amongst such reasons are certain medical diseases
rendering pregnancy dangerous to or for a woman’s life.
[14]
The
report also dealt with the scenario, acceptable in Greek law, where
surrogacy might be authorised where a woman was able to
reproduce in
the past, and even may have given birth to one or more children, but
at the time of the application and its hearing
in Court, she is
biologically unable to carry a pregnancy to full term.
The
Netherlands
[15]
The
provisions of the Act on In Vitro Fertilisation of 1 April 1998
[5]
set out that gestational or high technology surrogacy should comply
with the directives adopted by the Dutch Society for Obstetrics
and
Gynaecology. These directives include a provision that requires a
medical certificate establishing a surrogacy as the only
option for
the intended mother to have a child to which she would be genetically
related, because a pregnancy would be impossible
or dangerous for
her.
Israel
[16]
Gestational
surrogacy is regulated by way of the Agreements for the Carriage of
Foetuses (Approval of Agreement and Status of the
New Born) Law, 5756
of 1996, which inter alia provides that a commissioning mother must
have a medical condition which prevents
her from carrying a child or
a condition which would put the mother or the child at risk during
the pregnancy.
New
Zealand
[17]
New
Zealand has no specific surrogacy legislation, but provisions
relevant thereto are included in The Human Assisted Reproductive
Technology Act of 2004 (HART). Surrogacy is defined in this Act as a
‘
regulated
procedure’
,
which means that a fertility clinic cannot carry out the IVF process
in relation to surrogacy without approval from a specified
ethics
committee. In terms of the guidelines in New Zealand the
commissioning mother may only qualify for surrogacy if the proposed
surrogacy is the ‘
best
or only opportunity for her to become a genetic parent’
,
although ‘
best
or only’
is not defined in the Act.
Australia
[18]
In
Australia all jurisdictions except the Northern Territory allow
altruistic surrogacy. All the territories have their own legislation
governing surrogacy
[6]
. The
commissioning mother must have a medical condition which prevents her
from conceiving or where the pregnancy itself or giving
birth would
significantly negatively affect her health. This legislation includes
the scenario where a child would suffer from
an inherited genetic
condition from the mother.
United
States of America
[19]
Surrogacy
legislative provisions would appear to vary from state to state. In
the most recent recommendations published by the American
Society for
Reproductive Medicines for practices utilising gestational carriers,
guidance is provided for when it is appropriate
to consider using a
gestational carrier and for screening and testing of genetic parents
and gestational carriers to reduce the
possibility of complications.
They propose
inter
alia
that the use of a gestational carrier is indicated when a true
medical condition precludes the intended parent from carrying a
pregnancy or would pose a significant risk of death or harm to the
woman or the foetus. The indication must be clearly documented
in the
patient’s medical history.
[20]
Although
this review of international practice is not comprehensive it would
appear that many foreign countries require the existence
of a medical
reason for surrogacy and that the reason need not constitute a
complete bar to conception or a successful pregnancy
but can extend
to pregnancies which would pose a significant risk of death or harm
to the woman or the foetus.
The
interpretation of section 295(a)
[21]
The
provision in sec 295(a) of the Act that a court may not confirm a
surrogate motherhood agreement unless ‘
the
commissioning parent or parents are not able to give birth to a child
and (that) the condition is permanent and irreversible’
is
couched in broad terms and requires interpretation. The use of the
word ‘
condition’
is not qualified or prefaced by anything to limit the meaning thereof
to only a physical medical condition which leaves room for
the
argument that such condition could include both physical and
psychological conditions. A similar question arises in regard
to the
meaning ‘
not
able to give birth’
and in particular whether that entails absolute physical incapacity
or something less, such as a condition which would entail significant
risk to the life or health of the mother or foetus in the event of a
natural pregnancy being attempted.
[22]
The
Act provides no further direct or indirect clarification of sec
295(a) leaving it subject to the ordinary rules of interpretation.
In
Natal
Joint Pension Fund v Endumeni Municipality
the following was stated regarding the exercise of interpretation:
‘
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances intended upon its coming into existence.
Whatever the nature of the document consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective.
The sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose
of the
document’
.
[23]
There
is in addition much authority for the proposition that when embarking
upon legislative interpretation it is presumed that
the legislature
did not intend unfair, unjust, unreasonable or anomalous results from
its enactments
[7]
.
[24]
Having
regard to these guidelines I consider that a narrow interpretation of
sec 295(a), one which only permits surrogacy arrangements
where the
female partner or partners are physically incapable of a pregnancy or
carrying a pregnancy to term, and irrespective
of the health risks
attached thereto, is inappropriate. Such an interpretation would lead
to an insensible result, compelling a
woman who wishes to have a
genetic link to a child to undergo a pregnancy which may result in
significant, even life-threatening,
medical harm to herself.
Furthermore, such an interpretation would be at odds with the
apparent purpose of the surrogacy provisions
in Chapter 19 of the Act
which are designed to afford an opportunity to persons who would not
otherwise be able to raise a child
genetically linked to them to do
so by means of surrogate motherhood. In enacting these provisions the
legislature would presumably
have been aware that would-be parents
interested in surrogacy motherhood include persons for whom carrying
a pregnancy to full
term might not be physically impossible but would
be associated with significant medical risks to the life or health of
the mother.
It is unlikely that the legislature intended that
surrogate motherhood would not be available to such persons who,
although not
pregnancy infertile, would be at significant medical
risk were they to attempt to carry a child to term.
[25]
Taking
these factors into account I consider that the term ‘
not
able to give birth’
must be interpreted as meaning unable to give birth without
significant medical risk to the health or life of the mother.
[26]
A
further question which arises is whether significant medical risk to
the foetus or child born of a natural pregnancy would be
sufficient
for a commissioning parent to conclude a surrogate motherhood
agreement. This would require an extended interpretation
of sec
295(a), one which would in effect read in the words ‘
without
significant medical risk to its heath or life’
after the words ‘
a
child’
.
For the reasons which follow it is not necessary, in the
circumstances of this matter, to answer this question. Moreover,
given
the sensitivity and far-reaching implications of the issue it
is, in my view, one best clarified by the legislature.
[27]
The
remaining question is whether, on the interpretation of sec 295(a)
set out above, the first applicant is unable to give birth
to a child
as a result of a condition which is permanent and irreversible.
[28]
In
my view the evidence tendered by the first applicant establishes that
any further attempt by her at pregnancy will risk significant
and
even life-threatening medical harm to both her and, as it happens,
the foetus. The first applicant suffers from a condition
which
firstly has a psychological component, namely, the chronic
post-traumatic stress disorder and the recurrent major depressive
disorder. As explained by Dr Graves the medication which the first
applicant takes for these conditions can have adverse pregnancy
outcomes including increased risk of congenital abnormalities in the
child. Stopping the medication in the past has resulted in
acute
deterioration of the first applicant’s condition. Dr Graves
rightfully regards this as a permanent, irreversible condition
which
in itself necessitates the use of a surrogate.
[29]
Quite
apart from the psychological component, the first applicant’s
history of pregnancy indicates that a further attempt
to carry
another pregnancy will be life threatening given that she suffers
from hypothyroidism and diabetes. Pregnancy will expose
her to the
risk of gestational diabetes recurring, of early onset pre-eclampsia
which will threaten both foetal and maternal life
as well as the
life-threatening complication of a repeat placenta previa. This
condition alone would pose a significant risk to
the first applicant
in the event of her attempting a natural pregnancy and is also
permanent and irreversible.
[30]
In
the circumstances I consider that the first applicant has established
that, within the meaning of sec 295(a) of the Children’s
Act
which I consider appropriate, she is not able to give birth to a
child and that the condition is permanent and irreversible.
This the
first applicant has established on the basis of the risk to her own
health and life which a further pregnancy will entail,
irrespective
of the risk to the foetus.
[31]
As
far as the balance of the requirements necessary to be fulfilled for
the Court to confirm the surrogacy agreement, the applicants
have
made out a good case. All the applicants are domiciled in the
Republic of South Africa, the gametes of the second applicant
are to
be used in the artificial fertilisation procedure referred to in sec
303 of the Act and the commissioning parents are suitable
potential
parents as confirmed by the reports of professional persons. The
surrogate mother is moreover a suitable person, both
medically and
psychologically, to carry the pregnancy and this has been vouched for
by a psychologist. The surrogacy agreement
itself meets all the
requirements of sec 292(1)(i)(a) – (d) and sec 295 (b) –
(e) of the Act.
[32]
In
the circumstances the applicants are granted an order as per annexure
X confirming the surrogate motherhood agreement and granting
the
ancillary relief necessary for the surrogate pregnancy to proceed.
BOZALEK
J
For
the Applicant
Adv G
Rüther and Adv B Gradidge
As
Instructed by
Robynne Friedman Attorneys
[1]
2011 (6) SA 514 (GNP)
[2]
At page 522
at para 36
[3]
Greek Civil Code: Articles
1455/1460 Article 455 para.
[4]
Available on
www.europarl.europa.eu/studies
[5]
Staatscourant 1998/95 pp 14 to
18
[6]
Queensland Surrogacy Act, 210 No
5; New South Wales Surrogacy Act, 2010 No 102; Tasmania Surrogacy
Act 32 of 2012; Victoria Assisted
Reproductive Treatment Act 76 of
2008; Australian Central Territory Parentage Act 2004; Western
Australia Surrogacy Act, 2008;
South Australia Statutes Amendment
(Surrogacy) 64 of 2009.
[7]
Principal
Emigration Officer v Bhoola
1931
AD 323
at page 336 and see also in this regards De Ville,
Constitutional Statutory Interpretation, 1
st
ed, at page 193 and 203.