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[2011] ZAGPJHC 9
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Ex Parte Applications for the Confirmation of three Surrogate Motherhood Agreements (2011/153, 2011/154, 2011/679 , 2011/1314, 2011/1315, 2011/1316) [2011] ZAGPJHC 9; 2011 (6) SA 22 (GSJ) (1 March 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
S:
2011/153
…
.
2011/154
…
...
2011/679
ALSO CASE NOS: 2011/1314
…
...............................
2011/1315
…
...............................
2011/1316
In
the matters between:
THE
EX PARTE
APPLICATIONS FOR THE CONFIRMATION OF THREE SURROGATE MOTHERHOOD
AGREEMENTS
______________________________________________________________
J U D G M E N T
______________________________________________________________
WEPENER, J
:
[1] On 7 January 2011 three
applications to confirm surrogate motherhood agreements in terms of
the Children’s Act 38 of
2005 (the Act) were brought to the
urgent court of this Division. Apart from the fact that no grounds
for urgency were made out
at all, the three applications were copied
and pasted and thus duplicated to a large extent in each instance.
Each application
states that it relies on the founding affidavit of
one BCB and annexures thereto. BCB made no affidavit in the second
and third
matters as he has no interest in them. These two
applications consequently incorrectly refer to annexures which are
not attached
to them. All three applications seek an order that “the
provisions of section 297 (91) of the Children’s Act 38 of 2005
will apply to the agreement…” There is no such section.
All three applications seek an order that the “Addendum
of the
Surrogate Motherhood Agreement…” be confirmed by the
court. There are no addenda attached to the surrogate
motherhood
agreements.
[2] In the first application, the
applicant states that he has no children. Yet, in his application he
alleges that he is desirous
”to have further children“ of
his own and wishes to “conceive my own further biological
child”. The contradiction
is not explained.
[3] Each of the applicants
alleges that he or she resides and is domiciled at an address within
the courts’ area of jurisdiction.
The one applicant in the
second application, however, states that he is a non-South African
citizen, “although domiciled
and residing” at an address
within the court’s jurisdiction. There are no particulars to
support the conclusion that
a particular applicant is indeed
domiciled within the Republic. The primary facts in support thereof
are absent.
[4] In the second application the
surrogate mother is identified in the application by a certain name.
The supporting affidavit
of the surrogate mother is by a person with
a different surname and this is not explained.
[5] Applications such as these
under consideration have serious implications for all the applicants
concerned and also for the children
to be born. Practitioners who
copy previous applications should take care to draft papers in a
proper manner and not to just shoddily
copy and paste other
applications.
[6] On 7 January 2011 Mr Thinane
appeared to move the three applications in the urgent court and I
ordered that all three applications
were to be postponed to 1 March
2011 as there was no case for urgency made out in any of the matters
despite a prayer that the
forms and service be dispensed with. The
court also wanted to consider the applications properly. It was
indicated to Mr Thinane
that he could possibly expect further
enquiries from the presiding judge prior to the matters being heard
on 1 March 2011 as the
court files would remain with the judge.
[7] Despite this, the attorney
for the applicants again enrolled all three matters on 19 January
2011 before His Lordship Mr Acting
Judge Kollapen. This time, the
matters had different case numbers and new court files had been
opened when they were so placed
before the presiding judge. There was
again a prayer that the court should dispense with the forms and
service provided for in
Rule 6(12)(b) and again, there was nothing in
the affidavits dealing with urgency. Kollapen AJ was not prepared to
hear the matters
in open court and indicated to Mr Thinane that there
was no urgency in the matters. The matters were removed from the roll
“by
agreement”.
[8] The attorneys for the
applicants again enrolled all three matters during the week before
term commenced. The matters appeared
on the motion court roll before
His Lordship Mr Justice Meyer. Meyer J advised Mr Thinane that he
was aware that three similar
matters were postponed and were to be
heard on 1 March 2011, and he suggested that they be postponed to
that date to the court
hearing the three similar matters. Mr Thinane
did not disclose to Meyer J that they were the very same three
matters that had been
postponed to 1 March 2011 and had again been
enrolled with different case numbers. Mr Thinane elected to remove
the matters from
the roll.
[9] On 31 January 2011, the
matters were enrolled for a fourth time by the attorneys and handed
to Her Ladyship Madam Justice Nicholls
in chambers, by Mr Thinane,
stating that a person in the Registrar’s office directed him to
place the matters before her.
On Wednesday 2 February 2011, Her
Ladyship granted the orders prayed for at about 9h30. This fact
became known at about 10h00 and
Mr Thinane was called back to the
chambers of Her Ladyship Madam Justice Nicholls. When confronted with
his conduct, Mr Thinane
could give no explanation and only stated
that he agreed that the matters were to be heard on 1 March 2011. Her
Ladyship, Madam
Justice Nicholls thereupon recalled the orders
obtained before her.
[10] On 15 February 2011, before
it was known that the matters were also enrolled before Kollapen AJ,
a letter was forwarded to
the attorneys calling for an explanation on
affidavit of their and Mr Thinane’s conduct. On 16 February
2011, the request
for an explanation was supplemented with the fact
that the matters had also been placed before Kollapen AJ on 19
January 2011.
[11] An affidavit dated 21
February 2011 was received on 22 February 2011. In this affidavit, Mr
Thinane makes certain allegations
why he thought that the
applications had to be treated with a measure of urgency. He supplies
no reasons why these allegations
were not included in the
applications at the first or any subsequent enrolments of the
applications. It does not explain why he
did not disclose the alleged
urgency to any of the other presiding judges. He fails to explain the
apparent conflicting allegations
regarding urgency when compared to
his acknowledgement to Nicholls J that the matters were indeed to be
heard on 1 March 2011.
He explains that he opened new court files
because the original court files were “missing”. This
explanation cannot
be accepted by virtue of the fact that Mr Thinane
was advised on 7 January 2011 that court files would remain with the
presiding
judge who will deal with the matters on 1 March 2011 (and
that Mr Thinane could possibly expect enquiries from the judge).
[12] The affidavit centres, in
the main, around alleged pressure placed by the applicants on Mr
Thinane to obtain relief from court
– as if such relief would
be granted as a matter of course. Pressure from clients can never
justify an officer of the court
circumventing a specific court order
and ruling such as the one given on 7 January 2011. The statement
that the clients “ordered”
the attorney to approach
another court is unacceptable.
It appears that the attorney left the approach to obtain the sanction
of the court to a very late stage instead of doing so much
earlier.
He regarded the role which the court has to play purely as a rubber
stamp.
The attorney’s claim that
he was within his rights to place the matter before a different
judge, having regard to what was
said when it was postponed on 7
January 2011, is also wholly unacceptable.
[13] The conduct of Mr Thinane to
re-issue the three matters under different case numbers and then to
attempt to obtain the orders
before three different judges, whilst
knowing that they are pending before another judge, is reprehensible.
The Registrar is directed
to make copies of the 6 court files and to
forward same, together with this judgment, to the Law Society of the
Northern Provinces.
[14] The applicant in the first
application is a 43 year old single male. The surrogate mother is
married to the third applicant,
also a female.
The applicants in the second application are a married couple, one
male and one female. The surrogate mother is a divorced female.
The applicants in the third application are a married couple, one
male and one female. The surrogate mother is a female married
to a
male.
All the applicants qualify as
commissioning parents and surrogate mothers pursuant to the
provisions of the Act.
[15] The legal requirements for a
valid surrogate motherhood agreement are set out in the following
relevant sections of the Act:
“
292 Surrogate
motherhood agreement must be in writing and confirmed by High Court
No surrogate motherhood agreement is valid unless –
the agreement is in writing and is signed by all the parties
thereto;
the agreement is entered into in the Republic;
at least one of the commissioning parents, or where the
commissioning parent is a single person, that person, is at the time
of
entering into the agreement domiciled in the Republic;
the surrogate mother and her husband or partner, if any, are at
the time of entering into the agreement domiciled in the Republic;
and
the agreement is confirmed by the High Court within whose area of
jurisdiction the commissioning parent or parents are domiciled
or
habitually resident.
(2) A court may, on good cause shown, dispose with the
requirement set out in subsection (1)(d).
293 Consent
of husband, wife or partner
(1) Where a commissioning parent is married or involved in a
permanent relationship, the court may not confirm the agreement
unless
the husband, wife or partner of the commissioning parent has
given his or her written consent to the agreement and has become a
party to the agreement.
(2) Where the surrogate
mother is married or involved in a permanent relationship, the court
may not confirm the agreement unless
the husband or partner has given
his or her written consent to the agreement and has become a party to
the agreement.
(3) Where a husband or partner of a surrogate mother who is not
the genetic parent of the child unreasonably withholds his or her
consent, the court may confirm the agreement.
294 Genetic
origin of child
No surrogate motherhood
agreement is valid unless the conceptions of the child contemplated
in the agreement is to be effected by
the use of the gametes of both
commissioning parents or, if that is not possible due to biological,
medical or other valid reasons,
the gamete of at least one of the
commissioning parents or, where the commissioning parent is a single
person, the gamete of that
person.
295 Confirmation by court
A court may not confirm a surrogate motherhood agreement unless –
(a) the commissioning parent or parents are not able to give
birth to a child and that the condition is permanent and
irreversible;
(b) the commissioning parent or parents –
(i) are in terms of this Act competent to enter into the
agreement;
(ii) are in all respects suitable persons to accept the
parenthood of the child that is to be conceived; and
(iii) understand and accept the legal consequences of the
agreement and this Act and their rights and obligations in terms
thereof;
(c) the surrogate mother -
(i) is in terms of this Act
competent to enter into the agreement;
(ii) is in all respects a suitable person to act as surrogate
mother;
(iii) understands and accepts the legal consequences of the
agreement and this Act and her rights and obligations in terms
thereof;
(iv) is not using surrogacy as a source of income;
(v) has entered into the agreement for altruistic reasons and not
for commercial purposes;
(vi) has a documented history of at least one pregnancy and
viable delivery; and
(vii) has a living child of her own;
(d) the agreement includes adequate provisions for the contact,
care, upbringing and general welfare of the child that is to be
born
in a stable home environment, including the child’s position in
the event of the death of the commissioning parents
or one of them,
or their divorce or separation before the birth of the child; and
(e) in general, having regard to the personal circumstances and
family situations of all the parties concerned, but above all the
interests of the child that is to be born, the agreement should be
confirmed.
Artificial fertilisation of surrogate mother
(1) No artificial fertilisation of the surrogate mother may
take
place –
before the surrogate motherhood agreement is confirmed by the
court;
after the lapse of 18 months
from the date of the confirmation of the agreement in question by
the court.
Any artificial
fertilisation of a surrogate mother in the
execution of an agreement contemplated in this Act must be done in
accordance with the provisions of the National Health Act, 2003
(Act
61 of 2003).
301 Payments in respect of surrogacy prohibited
(1) Subject to subsections (2) and (3), no person may in
connection with a surrogate motherhood agreement give or promise to
give to any person, or receive from any person, a reward or
compensation in cash or in kind.
(2) No promise or
agreement for the payment of any compensation to a surrogate mother
or any other person in connection with
a surrogate motherhood
agreement or the execution of such an agreement is enforceable,
except a claim for –
(a) compensation for expenses that relate directly to the
artificial fertilisation and pregnancy of the surrogate mother, the
birth
of the child and the confirmation of the surrogate motherhood
agreement;
(b) loss of earnings suffered by the surrogate mother as a result
of the surrogate motherhood agreement; or
(c) insurance to cover the surrogate mother for anything that may
lead to death or disability brought about by the pregnancy.
(3) Any person who renders a bona fide professional legal or
medical service with a view to the confirmation of a surrogate
motherhood agreement in terms of section 295 or in the execution of
such an agreement, is entitled to reasonable compensation therefore.
303 Prohibition of certain acts
(1) No person may artificially fertilise a woman in the execution
of a surrogate motherhood agreement or render assistance in such
artificial fertilisation, unless that artificial fertilisation is
authorised by a court in terms of the provisions of this Act.
(2) No person may in any way
for or with a view to compensation make known that any person is or
might possibly be willing to enter
into a surrogate motherhood
agreement.”
[16] Over and above these
provisions the court is the upper guardian of all children. See
Vista University,
Bloemfontein Campus v SRC, Vista University
1998 (4) SA 102
(O) at 104E-G. The Constitution of South Africa 108
of 1996 underlines the Court’s duty to regard children’s
interest
as paramount. Section 28 thereof reads as follows:
“
(1) Every child has the
right –
(a) to a name and a
nationality from birth;
(b) to family care or
parental care, or to appropriate alternative care when removed from
the family environment;
(c) to basic nutrition,
shelter, basic health care services and social services;
(d) to be protected from
maltreatment, neglect, abuse or degradation;
(e) to be protected from
exploitative labour practices;
(f) not to be required or
permitted to perform work or provide services that –
(i) are inappropriate for a
person of that child’s age; or
(ii) place at risk the child’s well-being, education,
physical or mental health or spiritual, moral or social development;
(g) not to be detained except
as a measure of last resort, in which case, in addition to the rights
a child enjoys under sections
12 and 35, the child may be detained
only for the shortest appropriate period of time, and has the right
to be -
(i) kept separately from detained persons over the age of 18
years, and
(ii) treated in a manner, and kept in conditions, that take
account of the child’s age;
(h) to have a legal practitioner assigned to the child by the
state, and at state expense, if substantial injustice would otherwise
result; and
(i) not to be used directly in armed conflict, and to be protected
in times of armed conflict;
(2) A child’s best
interest are of paramount importance in every matter concerning the
child.
(3) In this section “child” means a person under the
age of 18 years.”
The African Charter on the Rights
and Welfare of the Child, to which the Republic of South Africa is a
signatory, provides in article
20:
‘
1. Parents
or other persons responsible for the child shall have the primary
responsibility of the upbringing and development of
the child and
shall have the duty:
a) to
ensure that the best interests of the child are their basic concern
at all times;
b) to secure, within their
abilities and financial capacities, conditions of living necessary to
the child’s development;
and
c) to ensure that domestic
discipline is administered with humanity and in a manner consistent
with the inherent dignity of the
child.’
Judges are duty bound to ensure
that the interests of the child, once born, are best served by the
contents of the agreement, which
we are requested to confirm. Much
has been written regarding the pros and cons of surrogacy and I do
not intend dealing with any
of the social or ethical arguments
regarding the practice of surrogacy.
[17] As upper guardian one would
expect to know in detail who the commissioning parents are, what
their financial position is,
what support systems, if any, they have
in place, what their living conditions are and how the child will be
taken care of. A
good practice is also found regarding adoptions
where expert assessment reports from social workers are required and
in practice
a police clearance is obtained in order to demonstrate
the suitability of the adoptive parents. This can be applied to the
commissioning
parents with very good results. An expert report can
also address the suitability of the surrogate mother.
[18] As an example, the first
applicant merely alleges that he “is a 43 year old single
person” who has “reached
a stage in my life where I am
financially secure and posses the necessary resources to take on the
responsibility of a full time
parent.” Although financial
resources may be a factor to be taken into account, the details
thereof are lacking and the sufficiency
thereof does not necessarily
lead to the responsibility of bringing up a child. No facts are
supplied in support of the above conclusions.
[19] The second application, save
for the matters referred to in very general terms, allege that “we
deem our lives suitable
and stable enough to undertake the
responsibility of parenthood. We are furthermore economically and
emotionally stable enough
to proceed with the surrogacy …”
These are matters that a court has to decide based on facts. The
applicants have
not supplied the facts to me to come to a proper
conclusion that they are indeed “in all respects suitable to
accept parenthood…”
as is required in section 295 (b)
(ii). In addition, a clinical psychologist states that the mother of
one of the commissioning
parents will be the primary caregiver of the
child to be born. If that is so, more information regarding the
ability and inability
of the commissioning parents to be the primary
caregivers needs to be placed before the court.
[20] In an apparent attempt to
comply with section 295 (a) of the Act the second applicants attaches
a letter from a gynaecologist
who advises blandly “Due
to medical reasons …Ms M will not be able to carry a baby.”
Nothing is said
about the condition and whether it is permanent and
irreversible as required by the section.
[21] The second applicant also
attaches a report from a clinical psychologist. The report candidly
discloses that the psychologist
interviewed the commissioning mother
via the internet. I find it highly unsatisfactory for such an
assessment to be relied upon.
It creates an impression of babies for
sale on order – a situation certainly not envisaged by the Act
and which is highly
undesirable. The reports prepared by the
psychologists are superficial and unreliable, characterised by a
wholly inadequate reference
to facts in support of their psycho
social recommendations that the commissioning parents “are in
all respects suitable persons
to accept parenthood of the child that
is to be conceived” (section 295 (b) (ii)).
In addition, no reference is made
in the psycho social analysis of the suitability of the person
designated by the commissioning
parent in the event of his or her
death (section 295 (d)).
[22] There are numerous
unconfirmed reports in the media indicating that monetary
considerations are indeed a factor in many cases
contrary to the
provisions of section 301 of the Act. In order to address any abuse
the parties are required to set out full facts
regarding how any
compensation for expenses pursuant to the provisions of section
301(2)(a) and the loss of earnings pursuant to
section 301(2)(b) will
be made and precisely what amounts are to be paid pursuant to section
301(2)(c) of the Act. Full details
of all payments pursuant to
section 301(3) are to be disclosed to the court as these aspects
affect the validity of the surrogacy
agreement.
[23] Particulars pursuant to the
provisions of section 303 of the Act are to be disclosed to enable
the court to assess compliance
with the section.
[24] In matters where the
interests of children are paramount I am of the view that the
applicants must supply proper and full
details regarding themselves.
Unless this is done I am not in a position to determine whether the
commissioning parents are indeed
fit and proper to be entrusted with
full parental responsibilities.
[25] Save for the fact that the
applications are shoddily drawn, they do not contain full and
reliable facts which a court is required
to consider prior surrogate
motherhood agreements being confirmed. A court is not a rubber stamp
for this purpose.
“
The Law Commission
recommendations to the effect that every surrogacy agreement should
be confirmed in advance by a court, that
surrogacy for financial gain
should not be permitted and that all the parties to the agreement
should be to a strict screening
process before the agreement is
implemented, appear to have been accepted by the select
committee.”
Boberg’s Law of Persons
and Family 2
nd
ed p 353.
[26] In order to perform the duty
pursuant to the Act and the Constitution, I require complete and full
compliance with all the
provisions of the Act as well as compliance
with the requirements raised in this judgment.
[27] The Deputy Judge President
of this Division issued a practice directive no 5 of 2011 regarding
all applications for confirmation
of surrogate motherhood agreements
in terms of section 295 of the Act as follows:
“2. In
terms of Section 295;
2.1 the identity of the parties to court proceedings with regard
to a surrogate motherhood agreement may not be published without
the
written consent of the parties concerned; and
2.2 no person may publish any facts that reveal the identity of a
person born as a result of surrogate motherhood agreement.
3. In light of these provisions, prospective applicants have from
time to time sought directives from this office as to whether such
applications are to be placed for hearing on the ordinary roll, or
whether they are to be placed for hearing in chambers.
4. A directive is accordingly issued that;
4.1 A party who seeks to bring an application in terms of the
section must first have the application issued by the Registrar in
the ordinary course;
4.2 The court file with all its contents must however, be brought
to this office, immediately after issue;
4.3 This office will upon receipt of the court file and the
application, allocate the matter for hearing to a particular Judge,
who shall give further directives as to how the matter is to be
heard;
4.4 The applicant’s
attorneys must specifically refer this office and the court hearing
the application to the provisions
of Section 295 of the Act when the
court file is delivered to this office and when the application is
heard.
4.5 The parties must comply in all respects with such further
directives and requirements as may be stipulated by the Judge to whom
the file has been allocated.”
[28] In the circumstances the
applications are postponed
sine
die
in order for the
applicants to correct and supplement their applications to properly
comply with the provisions of the Act and
to place sufficient
information before the Court to enable it to consider the matters on
their merits. The practice directive is
also to be adhered to.
_____________________________
W
L WEPENER
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
_____________________________
I agree,
M
VICTOR
JUDGE
OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
APPLICANTS’ ATTORNEYS
Anthony Wilton Thinane Inc