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[2011] ZAGPPHC 185
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Ex parte: WH and Others (29936/11) [2011] ZAGPPHC 185; 2011 (6) SA 514 (GNP); [2011] 4 All SA 630 (GNP) (27 September 2011)
REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORA
CASE NO: 29936/11
DATE:27/09/2011
IN THE
EX
PARTE
MATTER BETWEEN:
W
H
................................................................................................
FIRST
APPLICANT
UVS
..........................................................................................
SECOND
APPLICANT
L
G
................................................................................................
THIRD
APPLICANT
BJS
..............................................................................................
FOURT
APPLCIANT
JUDGMENT
TOLMAY
J AND KOLLAPEN J:
INTRODUCTION
[1]
This
is an application in terms of section 295 of the Children’s Act
38 of 2006 (“the Act”) for the confirmation
of a
surrogacy agreement. Surrogacy can be defined as an arrangement in
which a woman carries and delivers a child for another
couple or
person.
[2] Although one may be
tempted to think that the problem of surrogacy is a new one, it would
seem that since biblical times people
who could not have children
opted for forms of surrogacy. For example men were exhorted to
impregnate their widowed sisters-in-law
to secure heirs for their
dead brothers
1
.
There are also instances where husbands whose wives were infertile
engaged in sexual relationships with a family servant to provide
a
child for them
2
.
Informal surrogacy, arrived at more often by private agreement
between family members or people known to each other, was and
continues to be practised in many societies.
[3] Surrogacy was not
recognised in South-Africa before the enactment of the Act even
though there have been many reported instances
of informal surrogacy
being practised. The Act now provides a mechanism for many who desire
a child and for whom informal surrogacy
is not an option. This has
understandably resulted in a growing number of applications in this
division seeking the confirmation
of the Court of surrogacy
agreements.
[4]
Children
occupy a special place in the social, cultural and legal arrangements
of most societies .That this is so is understandable
in recognition
of both, the vulnerability of children and the almost instinctive
need to advance their well-being and ensure their
protection as well
as the compelling human and social imperative to pursue and further
their best interests as they are set on
the path of developing their
full potential and taking their rightful place as full and
responsible citizens of society.
The Preamble to the United
Nations Convention on the Rights of the
Child
provides that,
‘
..... the child, for
the full and harmonious development of his or her personality, should
grow up in a family environment, in an
atmosphere of happiness, love
and understanding. ‘
[5]
In
South Africa the social order recognises this commitment and it is
given expression in a variety of ways in the Constitution
as well as
the legal framework that has followed the adoption of the
Constitution. Both the preamble and the founding provisions
of the
Constitution evidences an intention to create a society based on
fundamental human rights and freedoms and the recognition
of the
inherent worth and dignity of each person. The Bill of Rights, beyond
it’s unequivocal commitment to the achievement
of equality and
the prevention of unfair discrimination, deals extensively with the
rights of children.
[6] In very much the same way
as society’s architecture is structured to advance the best
interests of the child , so too
does it reflect and give response to
the desire of many to have children of their own. For some it
represents the fulfilment of
the agency of their own lives and
existence as they seek to continue their lineage and their legacy,
while for others the vision
of a family living and loving together is
rendered complete with the arrival of a child. Of course there are
those who for valid
reasons of their own elect not to have children
and the law, in similar vein, recognises the choices people may make
not to have
children.
[7] To this end children
play a vital role in how the values, cultures and traditions of a
people are held in collective safe
keeping and passed on to future
generations, matters central to both the protection and the extension
of the identity of a people.
The law and social practices must
accordingly and in an appropriate fashion be responsive to and
facilitate, to the extent that
it can, this process which in many
respects represents the animating energy in the lifeblood and in the
continuity of a people.
[8] In all of this the role
and place of the family as an important social unit around which
relations are structured and nurtured
has been acknowledged and
recognised as pivotal.
The
Universal Declaration of Human Rights
proclaims that ‘the family is the natural and fundamental group
unit of society and is entitled to protection by society
and the
State.’
The
International Covenant on Civil and Political Rights
as
well as the
African
Charter on Human and Peoples’ Rights
contain similar provisions which affirm and properly recognise the
role and place of the family within the broader design of society.
BACKGROUND TO THE
APPLICATION AND INVITATION TO THE
AMICI
CURIAE
[9] In order to ensure
consistency and develop a uniform practice in matters of this nature,
the Deputy Judge President constituted
a Court to consider this
application and to determine and provide guidelines on how similar
applications should in future be dealt
with.
[10] Consequently the Court
invited the Bar, The Law Society and the Centre for Child Law to make
submissions as
amicus
curiae
to
the court regarding the correct approach in surrogacy agreements and
required them to address the following in their submissions:
10.1 the approach that should
be followed where the genetic material used is not that of the
parties;
10.2 the approach, if any,
that should be followed when same sex couples apply for a surrogacy
agreement to be made an order of
court, and
10.3 the appropriate steps
that should be followed and factors to be considered to determine the
best interests of the child.
[11] The Pretoria Bar and the
Centre for Child Law together with Counsel for the applicants filed
helpful heads of arguments and
also contributed by presenting oral
argument at the hearing of the matter. We are indebted to them for
their invaluable contribution.
[12] After perusing the
papers in this matter and noting that an agency Baby-2-Mom introduced
the surrogate mother to the commissioning
parents the court also
requested the applicant to deal with the following:
12.1 To file a supplementary
affidavit setting out the procedures followed by Baby-2-Mom in
facilitating surrogacy;
12.2 To provide, if there was
any additional agreement between the applicants and the potential
surrogate mother, a copy of such
agreement or the terms of such an
agreement;
12.3 All the agreements, if
any, entered into between Baby-2-Mom and the applicants and
Baby-2-Mom and the surrogate mother.
12.4 To indicate whether the
applicants paid Baby- 2-Mom any compensation for services rendered?
If so, what amount was so paid?
12.5 To indicate whether
Baby-2-Mom paid the potential surrogate mother any compensation? If
so, full particulars of such compensation
was required.
[13] It warrants mention that
the rationale for requesting the additional information
was not located in any
suspicion or distrust of the parties or the agency but
rather to ensure that in the
determination of the application and the relief
sought the Court was appraised
of all the facts which would include all facts
relevant to the Baby-2-Mom
agency.
THE BACKGROUND TO THIS
APPLICATION
[14] The first and second
applicants (referred to as the “commissioning parents”)
are two males who are married to each
other and who approach the
Court to confirm a surrogacy motherhood agreement in terms of the
Act. The third applicant is the surrogate
mother and the fourth
applicant is her life partner.
[15] The commissioning parents
are a Dutch and a Danish citizen respectively, both of whom are
domiciled in South-Africa and intend
to stay here permanently. They
have been in a relationship for eight years and entered into marriage
in South Africa in September
2010.
[16] The applicants do not
have children of their own and both being male persons are incapable
of having children that are genetically
related to them except via
the process of surrogacy.
[17] They had on a previous
occasion entered into a surrogacy agreement which was confirmed by
this Court but was not implemented
as the surrogate mother became ill
during the process and had to withdraw.
[18] The commissioning parents
were introduced to the potential surrogate mother by an agency known
as Baby-2-Mom. They confirmed
that no funds with regards to the
introduction of the surrogate mother had been or will be paid in
contravention of the Act.
[19] They allege that they are
economically and emotionally stable enough to proceed with the
surrogacy agreement and attach a comprehensive
report from a clinical
psychologist Ms Mandy Rodrigues to confirm the latter.
[20] They proceeded to give
information about their circumstances including their employment,
financial circumstances, and assets
and also declare that they do not
have any criminal records. From the information provided it does
appear that they possess the
financial means to provide for a child
now and into the future, that they live within a supportive social
structure and that they
are motivated by a ‘ deep seated desire
to become parents ‘ . They also set out to persuade the Court
that the child
to be born will have appropriate “maternal
influences”. We deal with this aspect later in the judgment.
[21] The surrogate mother who
is engaged to the fourth applicant is a personal assistant with 2
children of her own, who are presently
14 and 3 years old. These are
children born from a previous marriage and the older child lives with
his father. The clinical psychologist,
who interviewed the
commissioning parents also interviewed her and stated that she is
suitable to act as a surrogate mother. It
is however obvious from the
aforesaid report that the intended surrogate mother had a difficult
childhood and may not be as privileged
as the commissioning parents.
[22] It is important to note
that the surrogate mother’s gametes will not be used during the
fertilization process. While
the application is silent on the
question who the donor of the eggs will be and from where it will be
obtained, this information
is not necessary for the determination of
the matter.
[23] As previously indicated,
an agency Baby-2-Mom was involved and introduced the surrogate mother
to the commissioning parents.
[24] As a result of the
involvement of Baby-2-Mom the Court requested that the commissioning
parents address certain issues referred
to in par [12]
supra
and a supplementary affidavit was filed prior to the hearing of this
matter.
[25] In response to our
request regarding the involvement of Baby-2-Mom, Jennifer Currie, the
founder and owner of Baby-2-Mom filed
an affidavit. She described
Baby-2-Mom as an online egg donation agency that had been
facilitating egg donation services since
2007. Her only source of
income, she stated, is derived from egg donation services. She states
that she is fully aware that the
Act does not allow for compensation
for the rendering of services in relation to the facilitation of
surrogacy and states that
she proceeded with surrogacy services
without charging a fee as an extension of her core business, being
egg donation.
[26] She furthermore stated
that no specific agreement is concluded between Baby-2-Mom and any
prospective surrogate mother. An
application form is either
submitted online or telephonically. In this application, the
necessary application was done via telephone
with the surrogate
mother who acquired Baby-2-Mom’s details via the internet. She
stated categorically that no form of payment
was promised or paid to
the surrogate mother and/or the commissioning parents by herself or
Baby-2-Mom. The commissioning parents
were known to her due to
previous dealings, presumably the previous surrogacy agreement
referred to above. She introduced the commissioning
parents to the
surrogate mother.
[27] She goes further to say
that she did not receive nor was promised any form of compensation
from the applicants regarding the
surrogacy, introduction and/or for
any egg donation with regard to this application. The second
applicant and the surrogate mother
confirmed the facts regarding
payment in a supplementary affidavit.
[28] The commissioning parents
also attached a list of estimated costs regarding payments related to
the surrogacy agreement and
its implementation. With regard to the
surrogate mother, these proposed payments include health insurance at
R20 400 per annum,
life insurance at R 6000.00 per annum and
alongside an item “Surrogate’s various expenditure
(transport, maternity
clothes etc’)” an amount of R 20
000.00
[29] No details are given
regarding the specifics in respect of this expenditure of the
surrogate mother which is a matter of concern
as generally speaking
there may be a danger that generic payments for expenditure without
specificity may well run the risk of
disguising the payment of
compensation. Without in any manner suggesting this to be the case in
this matter, we are of the view
that a detailed list of surrogacy
expenses with sufficient specificity should be provided to minimise
the possibility of abuse.
[30] While we accept the bona
fides of the agency Baby-2-Mom as well as the assertion that no
payment other than for expenses allowed
in terms of the Act will be
paid, we are of the view that as a general proposition and in the
main to avoid commercial surrogacy
( either directly or indirectly)
the Court should in all instances where an agency is involved , be
fully appraised of all the
facts and circumstances relating to the
modus operandi of the agency , the relationship between the agency
and the commissioning
parents as well as the agency and the
surrogate mother . We deal with this later in this judgment.
AN OVERVIEW OF THE LAW
[31] The rights of
individuals to bear and raise children is broadly recognised and
supported by the State through various measures
including the
provision of financial assistance, social and other support services.
It encompasses the right to have one’s
own child with whom
the parents share a genetic link , the right to adopt a child under
certain circumstances and more recently
in recognition of the
physical and medical difficulties people may experience in seeking to
have a child of their own , the right
to have a child through a
surrogacy arrangement. 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. The Act followed after
considerable thought was
given to the legal ramifications of the acknowledgment of surrogacy
within our legal framework by the
ad hoc committee on surrogacy
motherhood.
3
[32] Given the centrality of
the concept of ‘ the family’ in matters involving the
best interests of the child , the
very understanding of what
constitutes a family and the roles traditionally associated with the
component members of the family
has been the subject of considerable
attention by our Courts over the past 17 years . A constitution
founded as it is on the principle
of equality and non discrimination
has resulted in the substantial growth of a body of law that seeks to
ensure the full enjoyment
of all the rights in the Bill of Rights by
all. In this context amongst others the rights of gays and lesbians
to form personal
relationships of their choice and to marry and to
participate in family life has been unconditionally recognised as
being consistent
with the principles of equality and dignity
enshrined in the Constitution.
[33] Skweyiya J said in the
Du Toit matter:
4
-
‘
The institutions of
marriage and family are important social pillars that provide for
security, support and companionship between
members of our society
and play a pivotal role in the rearing of children. However, we must
approach the issues in the present
matter on the basis that family
life as contemplated by the Constitution can be provided in different
ways and means and that legal
conceptions of what constitutes family
life should change as social practises and traditions change.’
[34] Consistent with this
theme of the recognition of the rapidly changing nature of the
constructs and the definition of family
, the place of gender in the
determination of the quality of the parental role also enjoyed the
attention of the Court in van
der Linde
5
the Court concluded that :-
‘……
for
decades it has been accepted that the quality of a parental role is
determined by gender. It has been accepted that mothering
was a
component of a woman’s being only. At the present juncture it
is to be doubted whether that acceptance can by itself
serve as a
universally prevailing axiom. These days mothering is also part of a
man’s being. The concept of mothering is
indicative of a
function rather than a “persona” and this function is not
necessarily situated in the biological mother.
It includes the
sensitive attachment which flows from the attention devoted from day
to day to the child’s needs of love,
physical care, nutrition,
comfort, peace, security, encouragement and support. ……….Today
the man has the freedom
to reveal and live out the mothering feeling”
[35] Before the enactment of
the Act, it would appear that the only way in which commissioning
parents could become the legal parents
of the child was by way of
adoption in terms section 17(a) of the Child Care Act 74 of 1983
after the birth of the child.
[36] 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. Gay and lesbian people in a relationship
also have little choice other than
to enter into a surrogacy
arrangement if they should wish to have a child genetically linked to
either of them.
[37] The Act provides the
legal framework for willing parties to facilitate surrogacy
agreements with the proviso that the confirmation
by the High Court
of all surrogacy agreements is required to render any such agreement
valid.
[38] Section 292 of the Act
provides for the formal requirements of a valid surrogate motherhood
agreement
6
and in terms of section 295
7
a court may not confirm the agreement unless certain requirements are
met.
[39] The Act is prescriptive
about the content of the issues pertaining to the agreement, which
include consent, genetic origin
of the child, when artificial
fertilization could take place, termination of the agreement, and the
effect of termination of the
agreement
8
.
[40] The Act also deals with
the question of payments in respect of surrogacy and generally
prohibits commercial surrogacy while
only permitting payments related
to compensation for expenses, loss of earnings and bona fide
professional, legal and medical services
related to the confirmation
of a surrogate motherhood agreement
9
.
[41] Despite the fact that the
Act attempts to comprehensively regulate and structure the important
aspects regarding surrogacy
agreements , the legal implications of
this relative new development in our law could be rather complex and
could have far reaching
consequences for everyone involved.
[42] On a consideration of the
Act, the International Law and our Constitution it became clear that
a myriad of problems may arise
surrounding the implementation of the
peremptory requirements of the Act.
A BRIEF OVERVIEW OF THE
INTERNATIONAL LAW
[43] While there appears to be
a growing international trend to provide an adequate legislative
basis to deal with surrogacy, informal
surrogacy has been in
existence for a long time. Practised as far back as the biblical era
it is invariably shaped by the cultural,
traditional and social norms
of a given society. Family members of friends motivated by altruism
would become surrogate mothers
without any formalities being entered
into and this practise probably continues without the oversight or
the intervention of the
State.
[44] However there is also
growing recognition that private and familial relationships may not
always provide the answer to parents
who seek to have a child of
their own resulting in both the recognition in some jurisdictions of
formal surrogacy and the need
to regulate it.
[45] Given the considerable
diversity in culture, customs and traditions across nations there is
no consistent international practise
in the field of surrogacy and
perhaps understandably so. While most countries prohibit commercial
surrogacy, with India being the
prominent exception, the responses of
other countries have been varied ranging from an outright prohibition
of both altruistic
and commercial surrogacy in some jurisdictions to
the recognition and legislative regulation of altruistic surrogacy in
other jurisdictions.
[46] France, Iceland and Italy
have legislative provisions prohibiting all forms (both altruistic
and commercial) of surrogacy.
Other countries seek to provide a
comprehensive legal framework to regulate surrogacy. Surrogacy along
with ovum and sperm donation
has been legal in Georgia since 1992.
Under applicable law, a donor or surrogate mother has no parental
rights over the child born.
In the Ukraine surrogacy and surrogacy in
combination with egg/sperm donation has been legal since 2002. A
donor or a surrogate
mother has no parental rights over the child
born and the child born is legally the child of the prospective
parents
10
.
[47] In Israel, the Embryo
Carrying Agreements Law of 1996 legalized gestational surrogacy. This
law made Israel the first country
to implement a form of
state-controlled surrogacy in which each surrogacy agreement must be
approved by the state. A state –appointed
committee permits
surrogacy arrangements to be filed only by Israeli citizens who share
the same religion. Surrogates must be single,
widowed or divorced and
only infertile heterosexual couples are allowed to hire surrogates.
The numerous restrictions on surrogacy
under Israeli law have
prompted some intended parents to seek surrogates outside the
country.
11
[48] In the Netherlands and
Belgium there is a prohibition on commercial surrogacy while
altruistic surrogacy is permitted
12
.
[49] In Canada, the Human
Reproduction Act of 2004 recognises surrogacy for altruistic purposes
while prohibiting commercial surrogacy.
The stance of the Canadian
Courts in matters that came before it before the enactment of the
2004 Act was generally to recognise
the commissioning parents as the
legal parents of the child
13
.
[50] Australia allows for
individual state regulation on surrogacy. In Queensland all forms of
surrogacy are prohibited while in
Victoria commercial surrogacy is
forbidden and altruistic surrogacy is allowed in some limited
circumstances. While Western Australia
and South Australia allow for
altruistic surrogacy under the Surrogacy Act of 2008 and the Family
Relationships Act of 1975, it
is only available for legal couples of
the opposite sex. Single people and same sex couples may not enter
into altruistic surrogacy
arrangements.
14
[51] In the United States of
America, individual states regulate surrogacy under different laws
which range from a total prohibition
of all forms of surrogacy on the
one hand to the recognition of commercial surrogacy on the other with
some states in between allowing
for altruistic surrogacy while
prohibiting commercial surrogacy
15
.
[52] In California the
position is that single men, single women, heterosexual couples and
GLBT (gay, lesbian, bisexual and transexual)
couples are able to
successfully obtain parental rights
16
.
In order to list the intended parents on the birth certificate an
order of the Superior Court is required wherein the surrogacy
agreement is acknowledged and the position of the intended parents is
confirmed
17
.
In Florida the intended parents must petition the court within three
days of the child’s birth for an ‘expedited
affirmation
of parental status ‘at which point the court shall schedule a
hearing of the matter .If the court is satisfied
that the intended
parents have entered a valid surrogacy contract and that at least one
of them is the child’s genetic parent,
the court shall enter an
order finding the intended parents to be the legal parent of the
child
18
.
[53] In conclusion it does
appear that the position adopted in the Act is on par with the
international position in countries where
surrogacy is allowed.
SPECIFIC
LEGAL AND CONSTITUTIONAL ISSUES ARISING OUT OF SURROGACY APPLICATIONS
[54] Certain constitutional
and legal issues invariably arise out of surrogacy applications and
we deal with some of them below:
(i)
SURROGACY
AND SAME SEX RELATIONSHIPS
54.1 As South African Law
recognises heterosexual as well as same sex civil marriages and in
the light of the fact that no discrimination
on grounds of sexual
orientation is allowed same sex couples must be treated in exactly
the same manner as any heterosexual couple
and any deviation from
that will be unconstitutional. This has already been confirmed in
numerous cases
19
.
54.2 In our view care should
be taken that different tests are not applied to same sex couples
which could be discriminatory, for
example in some of the cases same
sex couples were required to show that there will be so called
“maternal influences”
the child would be subjected too.
The mothering of the child is a function that very often does not
have anything to do with the
gender of a parent
20
.
In any event many children grow up without a father or a mother and
the court should safeguard that it does not try and create
a utopia
for children born from surrogacy that is far removed from the social
reality of society.
[55] If one considers the
provisions of Section 292(1) (c) then it is evident that the
Legislature has contemplated that a single
person may also be a
commissioning parent. This appears to be in line with the prohibition
of non discrimination located in Section
9 of the Constitution.
(ii)
THE
BEST INTERESTS OF THE CHILD
[56] In terms of section 28(2)
of the Constitution a child’s best interests are of paramount
importance in every matter concerning
the child. This approach is
echoed in section 7 of the Act.
[57] Prior to the enactment of
the Act the position with regard to the acquisition of parental
responsibilities, in relation to
the child by the commissioning
parents was that the mother who gave birth to the child and her
husband, if married were regarded
as the parents of the child
21
.
Therefore the commissioning parents could only become the legal
parents if they followed adoption procedures. The result of this
was
that where the surrogate mother changed her mind and did not wish to
consent to the adoption of the baby she could do so irrespective
of
the genetic origin of the child. This issue was clearly a concern as
it could impact directly on the best interests of the child
as
uncertainty regarding the parents could impact negatively on the
child.
[58] In terms of section
297(b) and (c) of the Act the surrogate mother has to hand the child
over as soon as is reasonably possible
after the birth and neither
she or her partner or relatives have any right of parenthood or care.
[59] The best interests of the
child are furthermore addressed, in that the agreement may not be
terminated after the artificial
fertilization has taken place.
However, a surrogate mother who is also a genetic parent of the child
may prior the lapse of the
60 days after the birth of the child
terminate the agreement.
[60] Section 298(2) of the Act
dictates that the court must terminate the confirmation of the
agreement upon finding, after notice
to the parties and a hearing,
that the mother has voluntarily terminated the agreement and that she
understands the effect of the
termination, and a court may issue any
other appropriate order if it is in the best interests of the child.
In the light of the
fact that the Court can issue “an
appropriate order” the Court will be in a position to ensure
that the best interests
of the child is protected on termination of
the agreement.
[61] The best interest
principle has not been given an exhaustive content, but the standard
should be flexible as individual circumstances
will determine the
best interests of the child
22
.
[62] In the
De
Reuck matter
23
it was held
that:
“…
constitutional
rights are mutually interrelated and interdependent and form a single
constitutional value system. This Court has
held that s 28(2), like
the other rights enshrined in the Bill of Rights, is subject to
limitations that are reasonable and justifiable
in compliance with s
36.”
[63] Thus when a court
considers the question of the best interests of the child care should
be taken that the rights of the commissioning
parents in terms of the
Bill of Rights and the Promotion of Equality and Prevention of Unfair
Discrimination Act, Act no 4 of
2000 are not violated by unnecessary
invasion of the privacy of commissioning parents or by setting the
bar too high for parents
whose only option is to have a child by way
of surrogacy. This will entail a value judgment by the court taking
into consideration
the circumstances of the particular case.
(ii)
THE
SURROGATE MOTHER AND THE RISK OF COMMERCIAL SURROGACY
[64] While agencies that
introduce potential commissioning parents to potential surrogate
mothers generally play an important facilitative
role, there are at
the same time concerns that the involvement of agencies in the
introduction of surrogate mothers can also easily
lead to abuse. One
would be naïve not to see how it is possible to develop to a
point where “a womb for hire”
could become
de
facto
part
of surrogacy practise. From an overview of international practise it
becomes clear that, 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 and oversight in order
to avoid abuse which
ordinarily is very difficult to detect from the face of a contract of
surrogacy. Commercial surrogacy can
quite easily be disguised and
payments in contravention of the law can just as easily be included
under the guise of legal and
legitimate payments.
[65] Any payment to any
person other than those set out in section 301 of the Act is
prohibited. This would include any facilitation
fee to any person who
introduced the surrogate mother to the commissioning parents or any
compensation of any nature other than
those that the Act makes
provision for and which can only include the expenses of the
surrogate mother as set out in the Act, legal
and medical expenses.
The affidavit should state that no such fee was paid to any person.
[66] If any agency is
involved, full particulars regarding that agency should be revealed.
An affidavit by the agency should also
be filed containing the
following:
(a) the business of the
agency,
(b) whether any form of
payment is paid to or by the agency in regard of any aspect of the
surrogacy,
(c) what exactly the agency’s
involvement was regarding the (i) introduction of the surrogate
mother, (ii) how the information
regarding the surrogate mother was
obtained by the agency and (d) whether the surrogate mother received
any compensation at all
from the agency or the commissioning parents.
[67] Full particulars should
be set out in the founding affidavit on how the commissioning parents
came to know the surrogate mother
and why she is willing to act as a
surrogate to them. The surrogate mother’s background as well as
her financial position
should be investigated and set out in the
affidavit. Furthermore a comprehensive report by psychologist is
essential to assess
the suitability of the surrogate mother. This
should deal in particular with her background, psychological profile
and the effect
that the surrogacy and the giving up of the baby will
have on her. Full medical reports should also be obtained regarding
her physical
condition to indicate whether surrogacy pose any dangers
for her and/or the child. In our view the medical report should deal
with
the HIV status of the mother, as well as any disease that could
be transferred from her to the child in order to protect the child
and to allow the court to exercise its discretion properly in
confirming the agreement.
[68] In our view the
application should also state where the gametes will come from,
without revealing the identity of the donor.
(iv)
A
SUITABLE PARENT
[69] The Act prescribes in
section 295(b) (ii) that the commissioning parents should in all
respect be suitable parents to accept
parenthood , which raises the
critical question as to who would constitute such ‘suitable
persons” and what would their
attributes be . In our view the
individual idiosyncrasies of judicial officers should not determine
the matter nor should the dominant
prevailing view (whatever it may
be) 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. The bewildering diversity that is South Africa will mean
that cultural, social,
religious backgrounds as well as issues such
as gender may well be just some of the factors which may form views
on what a suitable
parent may be. Therefore courts should consciously
guard that in the exercise of their discretion personal perceptions
should not
operate to influence any decision on the suitability of a
person to either accept parenthood or to act as a surrogate mother.
On
the other hand a Court should have regard to the personal and
character details of a commissioning parent and in this regard
details
of previous criminal convictions, particularly those relating
to violent crimes or crimes of a sexual nature should be disclosed
and the circumstances surrounding them should be fully set out.
[70] It would be timely to
remember that for most people there are no restrictions or
prohibitions on their ability to procreate.
We should accordingly
guard against setting unreasonably high standards that are not
justifiable for people who choose surrogacy
as an option for having a
child. To do so will contravene the spirit of the principle of
equality enshrined in the Constitution
and the Equality Act. When a
court needs to decide on the suitability of a parent in our view an
objective test should be applied
which would include an enquiry into
the ability of the parents to care for the child both emotionally and
financially and to provide
an environment for the harmonious growth
and development of the child, bearing in mind the constitutional
principles already referred
to.
THE ROLE OF THE COURT
AND REQUIREMENTS FOR SURROGACY
APPLICATIONS
[71] While a surrogacy
agreement is a contract whose validity is dependant upon the
confirmation of the High Court, it is a contract
of a special kind,
unique if regard is being had to its subject matter. The arrangement
that comes into place when a surrogacy
agreement is arrived at and
the consequences that may follow have far reaching and sometimes
unintended consequences.
[72] What is often at stake is
not only the physical well being of the surrogate mother and the
child to be born but also the psychological
consequences that may
follow upon the birth of the child and the process of the handing
over by the surrogate mother to the commissioning
parents of the
child born out of the arrangement. That being so a Court has a vital
role to play in the confirmation of the agreement.
While on the one
hand it is enjoined to advance the spirit and the objectives of the
Act without creating or placing additional
obstacles in the path of
litigants who seek relief , on the other as the upper guardian of all
minor children it cannot simply
be a rubber stamp validating the
private arrangements between contracting parties.
24
[73] As such it must ensure
that both the formal and the substantive requirements of the Act are
complied with .Invariably applications
of the kind contemplated by
the Act are brought on an ex parte basis and the Court is invariably
dependant upon the information
placed before it by the Applicants and
thus the utmost good faith would be expected and required of
applicants.
[74] In satisfying itself that
the peremptory requirements of the Act have been met the Court must
be placed in possession of sufficient
information to support any of
the conclusions that the applicants contend for. Where an applicant
seeks to draw certain conclusions
with regard to matters which may
include the financial, emotional or general suitability as a parent,
there should be facts to
support such conclusions that a Court can
interrogate. Ultimately the Court must be satisfied that the
conclusions arrived at are
supported by the facts. Accordingly vague
and generic allegations in this regard that fall short of supporting
a conclusion may
well render an application defective.
[75] It would also follow
where such an application is brought on the basis of urgency , the
proper grounds for urgency should be
clearly set out in the papers as
contemplated in Rule 6 (12) (b) of the Uniform Rules of Court.
[76] A Court hearing such an
application and in the exercise of its judicial discretion may
request any additional information from
the parties or any other
institution to assist it in the determination of the application.
[77] The affidavit should
contain the following:
77.1 All factors set out in
the Act together with documentary proof where applicable. The
affidavit should also contain the information
referred to in par [67]
and [74] hereof.
77.2 whether there have been
any previous applications for surrogacy; the division in which the
application was brought, whether
such an application was granted
and/or refused. If it was refused the reasons for the refusal should
be set out;
77.3 a report by a clinical
psychologist in respect of the commissioning parents and a separate
report in respect of the surrogate
and her partner;
77.4 a medical report
regarding the surrogate mother which must include
the details referred to in par
[67] in this judgment;
77.5 details and proof of
payment of any compensation for services rendered, either to the
surrogate herself or to the intermediary,
the donor, the clinic or
any third party involved in the process;
77.6 all agreements between
the surrogate and any intermediary or any other person who is
involved in the process;
77.7 full particulars, if any
agency was involved, any payment to such agency as well as an
affidavit by that agency containing
the information referred to in
par [65] and [66] this judgment;
77.8 whether any of the
commissioning parents have been charged with or
convicted with a violent crime
or a crime of sexual nature, as envisaged in par [69] of this
judgment.
[78] Regarding the enrolment
of the matter the following guidelines should be followed in order to
protect the identities of the
parties:
77.1 any party who seeks to
bring an application will cause same to be issued by registrar in the
ordinary course;
78.2 the court file must
thereafter immediately be brought to the office of the Deputy Judge
President, together with a letter explaining
the facts and that the
application is brought in terms of section 295 of Act 38 of 2005 and
requesting a date for hearing. In the
event that there exist any
urgency in the hearing of the matter that must be set out in the
letter as well;
78.3 the Deputy Judge
President will then give further directions as to how this matter
shall be heard in due course, including
the allocation of the judge
for the hearing the matter;
78.4 any consideration as to
hearing in camera must be addressed to the judge allocated to hear
the matter once the parties are
notified of the relevant date of the
hearing.
CONCLUSION
[79] If regard be had to the
requirements of the Act, the commissioning parents in this case have
made out a proper case for the
relief they seek. The formal
requirements found in Section 292 of the Act have been met and we are
satisfied that both the commissioning
parents as well as the
surrogate mother are suitable persons as contemplated in the Act ,
both to accept parenthood as well as
to act as surrogate mother
respectively. We are satisfied that arrangements for the care and
welfare of the child to be born ,
including the stability of the home
environment and the provision for the child’s needs in the
event of death of the commissioning
parents or divorce or separation
have been more than adequately provided for. Finally we conclude that
the parties have arrived
at the agreement we are required to confirm
for altruistic rather than commercial reasons. In the circumstances
the applicants
would be entitled to the relief being sought in the
Notice of Motion.
[80] We therefore make the
following order:
80.1 The surrogate
motherhood agreement annexure “FA4” Is confirmed.
80.1 The provisions of
section 297(1) of the Children’s Act of 2005 will apply to the
agreement for all purposes.
_________________________
R G TOLMAY
JUDGE OF THE HIGH COURT
________________________
N KOLLAPEN
JUDGE OF THE HIGH COURT
1
Deuteronomy 25:5
2
Ruth 4:7, International Survey of Family Law 2011 Ed. This Child is
My Child v Child is Your Child, this Child was made for You
and Me –
Surrogacy in England and Wales, Mary Gwalstead
3
See report of the Ad Hoc Committee on Report of the S A Law
Commission on Surrogate Motherhood, dated 12 February 1999
4
Du Toit and Another v Minister of Welfare and Population
Development and Others 2003(2) SA 198 (CC)
5
Van der Linde v Van der Linde 1996(3) SA 509(O)
6
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, 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
tome of entering into the agreement domiciled in the Republic;
and
The
agreement is confirmed by the High Court within whose area of
jurisdiction the commission parent or parents are domiciled
or
habitually resident.
A
court may, on good cause shown, dispose with the requirement set
pout in subsection(1)(d).
7
“Confirmation by court. –
A court may not confirm a surrogate mother hood agreement unless –
The
commissioning parent or parents are not able to give birth to a
child and that the condition is permanent and irreversible;
The
commissioning parent or parents –
Are
in terms of this Act competent to enter into the agreement;
Are
in all respects suitable persons to accept the parenthood of the
child that is to be conceived; and
Understand
and accept the legal consequences of the agreement and this Act and
their rights and obligations in terms thereof;
The
surrogate mother –
Is
in terms of this act competent to enter into the agreement;
Is
in all respects a suitable person to act as surrogate mother;
Understands
and accepts the legal consequences of the agreement and this Act
and her rights and obligations in terms thereof;
Is
not using surrogacy as a source of income;
Has
entered into the agreement for altruistic reasons and nor for
commercial purposes;
Has
a documented history of at least one pregnancy and viable delivery;
and
Has
a living child of her own.
The
agreement included adequate provisions of the contact, care and
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;
In
general, having regard to the personal circumstances and family
situations of all the parties concerned, but above all the
interest
of the child that is to be born, the agreement should be
confirmed”.
8
Section 293 – 294 and 296 - 300
9
Section 301
10
http:/enwikipedia/wiki/surrogacy
11
supra
12
supra
13
Rypkema v British Columbia (2003) B.C.J No 2721, BCSC 1784, J.R. v
L.H. O.J. No 3998, 2002 ON.C. LEXIS 799
14
Burpee A “Momma Drama: A Study of How Canada’s National
Regulation of Surrogacy Compares to Australia’s Independent
State Regulation of Surrogacy” (2008-2009) 37
Ga. J Int’l
& Comp. L
305 at 319.
15
Hoffman D “Mama’s Baby, Daddy’s Maybe:” A
State-By-State Survey of Surrogacy L:aws and their Disparate
Gender
Impact” (2008-2009) 35
Wm. Mitchell L. Rev
449 at 461
16
supra
17
supra
18
supra
19
See
Minister
of Home Affairs v Fourie and Another 2006(1) SA 546 CC, Du Toit v
Minister of Welfare Population Development 2003(2)
SA 196 CC, J v
Director General Department of Home Affairs 2002(5) BCL on 436 CC,
National Coalition for Gay and Lesbian Equality
and Others v
Minister of Home Affairs 2002(6) SA 1 CC, Gory v Glover NO and
Others 2007(4) SA 97 CC
.
20
See Ex Parte Gritchfield 1991(1) All SA 318 W, Van der Lindde
supra
21
Section 5 of the repealed Children Status Act 82 of 1978
22
See Minister of Welfare and Population Development v Fitzpatrick and
Others 2000(3) SA 422 CC
23
See De Reuck v Director of Public Prosecutions Witwatersrand Local
division and Others 2004(1) 406 CC
24
(See
Judgment of Wepener J in Ex Parte Applications for the confirmation
of Three Motherhood Agreements South Gauteng High Court
Case Nos
2011/53)