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[2017] ZAGPPHC 70
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Ex Parte HPP and Others; Ex Parte DME and Others (45037/2016) [2017] ZAGPPHC 70; [2017] 2 All SA 171 (GP); 2017 (4) SA 528 (GP) (9 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
9/2/2016
CASE
NO
: 45037/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
IN
THE EX-PARTE APPLICATION OF
HPP
FIRST
APPLICANT
JTP
SECOND
APPLICANT
SEW
THIRD
APPLICANT
WJW
FOURTH
APPLICANT
CASE
NO:
61935/2016
IN
THE EX PARTE APPLICATION OF:
DME
FIRST
APPLICANT
CDE
SECOND
APPLICANT
AMVH
THIRD
APPLICANT
RS
FOURTH
APPLICANT
JUDGMENT
TOLMAY
J:
INTRODUCTION:
[1]
Both these applications were brought by the applicants for
confirmation of surrogate motherhood agreements in terms of sec
292(1)(e) read with sec 295 of the Children's Act of 2005 (the
Children's Act).
[2
]
In both these applications Ms Lee-Ann Strydom (Ms Strydom) acted as a
so called surrogacy co-ordinator and provided surrogacy
facilitation
services for which she charged a fee.
[3]
The following issues arose from this:
(i)
Whether the surrogacy facilitation agreements constitute a
transgression of sec 301 of the Children's Act; and
(ii)
Whether the court could confirm the surrogate motherhood agreements
if it is found that the agreements between Ms Strydom and
the
applicants were unlawful.
[4]
In both the applications the applicants had, but for the aforesaid,
complied with the requirements pertaining to surrogate motherhood
agreements as set out in the
Children's Act as
well as the guidelines
provided by the Court for surrogacy applications.
[1]
[5]
I will refer to the application under case no 45037/2016 as the first
application and the application under case no 61935/2016
as the
second application.
THE
FIRST APPLICATION
[6]
In the first application, the First and Second Applicants (HP and JP)
states that they previously entered into a surrogate motherhood
agreement which was confirmed by the Court on 19 November 2013. The
surrogate in that instance was HP's best friend. As a result
of the
surrogacy process, a boy was born on 26 September 2014. HP and JP
however want to expand their family and the previous surrogate
mother
was not able to assist them again. HP and JP then approached Ms
Lee-Ann Strydom (Ms Strydom) of Destiny Babies. Ms Strydom
describes
herself as a surrogacy consultant and advertises her services as such
on the internet.
[7]
Ms Strydom introduced HP and JP to the potential surrogate mother
(SW) and apparently offered her services as a surrogacy co-ordinator.
Ms Strydom informed HP and JP that her task as a surrogate
co-ordinator would be to assist;
7.1
guiding and advising the surrogate;
7.2
with a referral to a clinical psychologist;
7.3
with any mediation with the surrogate;
7.4
if applicable, during the gestational period;
7.5
if required, manage any dispute resolution; and
7.6
in general, overseeing the entire surrogacy “
journey
"
[8]
The Applicants were amenable to enter into such an agreement with Ms.
Strydom. Ms Strydom invoiced them in an amount of R 5
000-00 for the
services rendered. It was pertinently stated that this amount does
not include any introduction fee to the surrogate
mother. Pursuant to
the payment of R 5 000-00, Ms Strydom then referred HP and JP for
purposes of assessment to the clinical psychologist
Stavoula
Samouris.
[9]
The applicants' attorney, quite correctly, disclosed the payment to
Ms Strydom in the papers as she was concerned that the payment
may be
in contravention of
sec 301
of the
Children's Act. The
conduct of the
attorney must be commended as Courts must be able to rely on
Applicants to act with the utmost good faith in
ex parte
applications. As Applicants themselves may not realise the duty they
have in this regard it will ultimately be the duty of the
attorney to
ensure that all relevant information is brought under the Court's
attention.
[10]
After perusal of the papers, Applicant was requested to file heads of
argument and the Child Law Centre (CLC) was requested
to assist as
amicus curiae
. They were requested to deal with the question
of the enforceability of the agreement between HP, JP and Ms Strydom
as well as
the consequences if it should be found that the agreement
between them is unlawful. The Court is indebted to CLC for their
valuable
assistance.
[11]
After considering the heads of argument, and at the first hearing of
the application, the Court raised the point that Ms Strydom
has an
interest in the proceedings as the agreement entered into between HP,
JP, and Ms Strydom seemed at a first glance to fall
foul of the
provisions of
sec 301of
the
Children's Act. As
a ruling about the
legality of the agreement will have an impact on Ms Strydom's rights
it was deemed appropriate to alert her
to the concerns raised.
Consequently the application was postponed
sine die
. The
application was served on Ms Strydom and she was called upon to show
good cause why the agreement should not be declared unlawful
and
unenforceable. She had to file an affidavit to this end. She was
ordered to comply with
sec 302(1)
and (2) of the
Children's Act which
protects the identity of the parties involved in the surrogate
motherhood agreement. Ms Strydom filed an affidavit and was joined
as
a Respondent to the proceedings in due course.
[12]
Although a
Rule 16A
notice was filed by Ms Strydom's legal team, this
notice only states that a constitutional issue will be raised
pertaining to the
interpretation of
Sec 301
of the
Children's Act in
the light of sec 22 of the Constitution. The Court was not called
upon to declare sec 301 unconstitutional but rather to interpret
sec
301 in such a way that Ms Strydom's constitutional right to follow
the occupation or trade of her choice is protected. No response
was
forthcoming from any party as a result of the Rule 16A notice.
[13]
In the affidavit filed by Ms Strydom she states that she started to
offer surrogacy facilitation services during August 2015,
trading
under the name "Destiny Babies". She says she works closely
with fertility clinics and medical practitioners.
In April 2016
Medfem clinic offered her fulltime employment as a surrogacy
co-ordinator, which she took up.
[14]
She argues that she is entitled to choose her occupation in terms of
sec 22 of the Constitution and the provisions of sec 301
should not
deprive her of that right.
[15]
She states that she assisted the Applicants in terms of the
facilitation agreement. She
inter alia
introduced HP and JP to
SW, but she asked no introductory fee. She performed the following
services:
a)
She arranged appointments with Ms Sumouris, the clinical
psychologist;
b)
She attempted to arrange medical assessments with medical
practitioners at Vitalab Clinic;
c)
She monitored WS throughout the surrogacy process;
d)
She offered WS around the clock emotional support;
e)
WS joined her surrogate support group; and
f)
She consulted HP, JP and WS regarding surrogacy related expenses.
[16]
Ms Strydom explains that she acted as a surrogate mother herself 6
times during the past 11 years and regards herself as uniquely
qualified to assist people who are involved in the surrogacy process.
She attached a medical-psychological expert opinion, co-authored
by
Dr Antonio Rodrigues, a medical practitioner who specialises in
reproductive medicine and Ms Mandy Rodrigues, a clinical
psychologist,
to support her claims about the value of her services.
She also attached an ethics expert's opinion by Prof Thaddeus Metz.
The
opinion by Prof Metz seeks to persuade the Court that the
facilitation agreement is morally and ethically sound and should not
be declared unlawful.
[17]
According to the medical-psychological report Ms Strydom's services
are invaluable and she is described by the authors as "
the
Florence Nightingale of surrogacy
". It states further that:
a)
Without her assistance, commissioning parents will have to find a
surrogate mother themselves;
b)
She briefs the commissioning parents about medical and legal aspects;
c)
She makes sure that the surrogate mother is medically assessed;
d)
She determines whether the surrogate mother's living conditions would
be amenable to carrying a pregnancy; and
e)
She reminds the surrogate mother to keep her medication regimen
related to either artificial fertilisation or the pregnancy.
[18]
Ms Strydom states furthermore that she
inter alia
, explains
complicated medical reports, debriefs the surrogate mother after
invasive medical procedures and prepares her emotionally
for the said
procedures.
[19]
On an evaluation of the services rendered by her, I am concerned that
these services encroach on the professional fields of
inter alia
,
legal representatives, psychologists and medical practitioners. The
concern is that Ms Strydom's only qualification seems to be
her
personal experience as a surrogate mother. Invaluable as her
assistance may be, I am not convinced that her personal experience
as
a surrogate mother qualifies her to render these services.
[20]
Ms Strydom's services are advertised on the internet and in addition
to the aforementioned a perusal of Destiny Babies' website
reveals
that they:
20.1
Have dealt with national and international clients;
20.2
"Help you find a surrogate"; and
20.3
"Provide, for intended parents living out of state, personal
consultation with the surrogate via home visits".
[21]
Ms Strydom proceeded in her affidavit to launch a scathing attack
against the legal representatives of HP and JP and even asked
for a
special cost order against them. She also launched an attack on CLC
which was ironically requested by the Court to assist.
These attacks
were also repeated and reiterated in the heads of argument filed on
her behalf. At the hearing I specifically enquired
from Counsel
appearing for Ms Strydom whether Ms Strydom persists with these
submissions and invited counsel to address me if this
was the case as
I
prima facie
deemed the attack ill-conceived and without any
merit. No argument whatsoever was raised on these issues and I take
it that those
submissions were abandoned and correctly so. I
consequently do not deal with these aspects in my judgment.
THE
SECOND APPLICATION
[22]
While the first application's hearing was pending the second
application also came before me under case no: 61935/2016. It
transpired from the psychologist's report that Ms Strydom was also
involved in this case in the same capacity as the previous one.
The
psychologist who filed a report in this matter, Ms Mandy Rodrigues,
is the co-author of the Medical-psychological report previously
referred to. In this instance rather unfortunately, no reference to
Ms Strydom's involvements was made to in the founding affidavit.
I
was merely stated that a staff member of the Medfem Fertility clinic
put the Applicants into contact with the potential surrogate
mother
and no introductory payment was made. I requested that an affidavit
be filed setting out Ms Strydom's role in the surrogacy
proceedings.
A supplementary affidavit was filed. As in the previous case, an
amount of R 5 000-00 was paid to Ms Strydom for the
services that I
have already alluded to and no fee was paid for the introduction of
the surrogate mother to the commissioning parents.
[23]
I invited the legal representatives of the Applicants in the second
application to attend and make submissions at the hearing
of the
first application. They did and submissions were made pertaining to
the issues that arose.
COMMERCIAL
SURROGACY
[24]
At the heart of the problem that arises in these two applications, is
the fact that commercial surrogacy is, as in most other
countries,
unlawful in South Africa and payments are limited to those
specifically provided for in the
Children's Act.
[2
]
The justification of the prohibition of commercial surrogacy has been
the cause of some debate, but the fact remains that it is
unlawful
and the Courts must apply the law within the existing legislative
framework.
[3]
[25]
In the UK certain acts relating to surrogacy arrangements are
criminalised, these acts include, negotiating or facilitating
arrangements on a commercial level and the publication or
distribution of an advertisement indicating a willingness to act as a
surrogate or expressing a need for a surrogate mother.
[4]
[26]
The foundational principle to the legislative framework applicable is
the objective to protect people who are involved in surrogacy
arrangements.
[5]
In
WH
the potential for abuse of, particularly, underprivileged women was
pointed out.
[6]
Despite some
voices calling for commercial surrogacy to be allowed the commonly
held view seems to be that the potential for abuse
far outweighs any
possible advantage. This is recognised in most countries and
consequently legal commercial surrogacy is the exception
rather than
the norm.
[27]
Section 301
prohibits payments in respect of surrogate motherhood
agreements and provides for limited exceptions only. This reinforces
the
principle that commercial surrogacy is unlawful.
[7]
[28]
Section 301
reads as follows:
(1)
Subject to subsection (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 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 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 the execution of such an
agreement, is entitled to reasonable compensation therefore.
[29]
A person who contravenes
section 301
commits an offence and if found
guilty is liable on conviction to a fine or imprisonment for a period
not exceeding 10 years, or
to both a fine and such imprisonment. If
found guilty more than once, such a person is liable to a fine and
imprisonment for a
period not exceeding 20 years or both a fine and
imprisonment.
[8]
[30]
Section 303(2)
of the
Children's Act states
that 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. This then makes the payment of any introductory
fee pertaining to the surrogate
matter unlawful and that also
explains why Ms Strydom categorically states that she did not receive
any introductory fee.
[31]
In addition to the offences provided for in
section 305
,
section
297(2)
of the
Children's Act states
that any surrogate motherhood
agreement that does not comply with the provisions of the
Children's
Act is
invalid and any child born as a result of any action taken in
execution of such an agreement is for all purposes deemed to be the
child of the woman that gave birth to that child.
[32]
In addition to these statutory requirements, the Court in
WH
[9]
set out guidelines that need to be complied with, the Court also
confirmed the fact that commercial surrogacy is unlawful. The
following was said: "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 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"
(my emphasis)
[33]
It is important to note that the payment of a facilitation fee or any
compensation of any nature other than those that the
Act makes
provision for to any person was expressly prohibited and the
affidavit should state that no such payment is made. In
the light of
this there was a duty on the Applicants in the Second Application to
inform the Court in the affidavit about the payments
made to Ms
Strydom. As already stated there is an ethical and professional duty
on attorneys to ensure that a Court, especially
in
ex parte
applications, are made aware of all relevant information. In the
light of this duty the attorney in a surrogacy application should
file an affidavit confirming that as far as they could ascertain no
payments were made to anyone apart from those provided for
in the
Children's Act.
[34
]
In
WH
an agency, whose principal business was egg
donation introduced surrogates free of charge. In order to ensure
that Courts be put
in a position to consider whether there is
compliance with the law and specifically
section 301
the Court ruled
as follows, pertaining to the involvement of these agencies:
"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 regards 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 (iii)
whether the surrogate mother received any compensation at all
from
the agency or the commissioning parents"
[35]
The purpose of the directives in WH were clearly to enable the Court
to
(a)
obtain all relevant information pertaining to compliance with the
Children's Act and (b) to determine whether there was any
contravention of the
Children's Act.
[36
]
The papers do not set out how Ms Strydom became aware of the fact
that the potential surrogates were willing to act as such. I
accept
that her website played a role and that she could have been contacted
by them and informed that they are willing to act
as such. This
information should have been included in the applications and Ms
Strydom, being the person who introduced them to
the commissioning
parents, should have made an affidavit setting out these facts.
[37]
On a proper reading of
WH
it is clear that the purpose for the
requirement to reveal certain information is to ensure compliance
with the
Children's Act, therefore
the same requirements should apply
to whoever introduces the surrogate mother and whoever provides
related services.
[38]
Ms Strydom's legal representatives argues that the surrogacy
facilitation services provided by her in pursuance of the
facilitation
agreement are beneficial to all persons involved, and
are not the kind of social ill that
section 301
aims to prohibit.
They argue that the purpose of
section 301
cannot be to aimlessly
criminalise the provision of paid for services that relate to
surrogate motherhood agreements, but
is rather to avoid commercial
surrogacy -
id est
payments in money or in kind to the
surrogate mother. This argument however loses sight of the fact that
commercial surrogacy entails
much more than mere direct payments to
surrogate mothers. There could also be third parties involved, who
could benefit financially
from the process in contravention of the
law.
[39]
I am alive to the fact that commissioning parents are in a difficult
situation when they start looking for a potential surrogate
and can't
find someone who is willing to assist from their circle. It is this
need that created space for services provided by
agencies and
individuals like Ms Strydom. The solution may well be that a
regulatory framework should be created which may also
include a
possible data base of potential surrogate mothers. If this database
is properly regulated the possibility of abuse can
be eliminated.
Until and unless that is done, similar situations as the ones we
encounter in these applications will arise. In
the meanwhile, the
only solution is to require of anyone, whether an agency, or an
individual or any entity whatsoever to file
an affidavit, as was
required in
WH
. A Court can also, if the need arises, request
any further information that it may deem relevant from the parties.
The Court should
then in each case exercise its discretion and
determine on a case to case basis, whether there was compliance with
the
Children's Act, while
keeping in mind that commercial surrogacy
is unlawful and that only certain expenses are allowed.
[40]
It is with the principle that commercial surrogacy is prohibited that
one should proceed when interpreting
sec 301.
Ms Strydom argues that
section 301
should be read with section 22 of the Constitution.
Section 22 reads as follows:
"Every
citizen has the right to choose their trade, occupation or profession
freely. The practice of trade, occupation or profession
may be
regulated by law."
[41]
She implores the Court to interpret
section 301
of the
Children's
Act, read
with section 22 of the Constitution in a manner that will
allow the services that she renders to be regarded as lawful. The
argument
proposed by her is that her services fall within those
provided for in sec 301.
[42]
The following should be kept in mind when interpreting the relevant
sections. Section 39(2) of the Constitution, mandates Courts
to
interpret legislation in a manner that would promote the spirit,
purports and objects the Bill of Rights. In terms of sec 36
of the
Constitution the limitation of rights contained in the Bill of Rights
must be reasonable and justifiable in an open and
democratic society.
A Court should when interpreting legislation follow a purposive and
contextual approach.
[10]
In
doing so a Court is enjoined to provide a broad and generous reading
in determining the ambit of constitutionally enshrined
rights.
[11]
[43]
On a reading of section 301, it would seem that two distinct
categories of lawful expenses are catered for. The first category
consists of costs directly related to:
(a)
The artificial fertilisation and pregnancy;
(b)
The birth of the child; and
(c)
The confirmation of the motherhood agreement.
The
second category deals with
bona fide
professional legal and
medical expenses.
[44]
Ms Strydom's legal representative argued that on a proper
interpretation of sec 301, the surrogacy facilitation agreement and
expenses provided by Ms Strydom falls within the ambit of section
301. To come to that conclusion, her services must fall within
either
of the aforementioned two categories.
[45]
When the first category of expenses is considered it must be noted
that the expenses must be directly related to the processes
referred
to. The expenses listed are limited to that which is necessary to
ensure that the process of surrogacy and the subsequent
pregnancy are
successfully completed and the motherhood agreement confirmed. This
will obviously include costs that are necessary
to ensure that the
fertilisation process can be completed as well as costs that are
directly linked to the pregnancy. This will
inter alia
include
the costs of the embryologist, which although necessary for the
fertilisation process, may not qualify as a medical expense.
In my
view the services rendered by Ms Strydom are not directly linked to
either the fertilisation process or the subsequent pregnancy
as they
are not essential to ensure either the fertilisation or the
pregnancy. Neither can it be argued that her costs are directly
related to the birth.
[46]
The costs pertaining to the confirmation of the motherhood agreement
will include costs necessary to attend to the confirmation
which will
include costs to comply with the Court's requirements, this will
include i.e. psychologists, social workers or any costs
that may be
occasioned by the requirements set by the Court and which will ensure
that the surrogacy motherhood agreement is confirmed.
Ms Strydom's
services are on the same grounds set out above not directly related
to the confirmation of the motherhood agreement.
[47]
Consequently the services rendered by Ms Strydom will not fall under
expenses provided for under section 301(2)(a). It needs
no further
argument that her costs could not be regarded as professional legal
or medical costs as provided for in the second category.
Consequently
Ms Strydom's services do not fall within those provided for in sec
301.
[48]
If one then proceeds to consider whether Ms Strydom's right to follow
the trade or occupation of her choice is violated, one
must look at
section 22 of the Constitution in the context of what section 301 is
trying to accomplish, while keeping in mind the
provisions of sec 36
of the Constitution. As already stated sec 22 provides for the right
to follow a trade or occupation but also
provides that the practice
of a trade may be regulated by law.
[49]
The Constitutional Court held as follows regarding the right to
freedom of trade, occupation and profession in
Affordable
Medicines Trust
[12]
,
"What
is at stake is more than one's right to earn a living, important
though that is. Freedom to choose a vocation is intrinsic
to the
nature of a society based on human dignity as contemplated by the
Constitution. One's work is part of one's identity and
is
constitutive of one's dignity. Every individual has a right to take
up any activity which he or she believes himself or herself
prepared
to undertake as a profession and to make that activity the very basis
of his or her life. And there is a relationship
between work and
human personality as a whole. It is a relationship that shapes and
completes the individual over a lifetime of
devoted activity; it is
the foundation of a person's existence.
Though
economic necessities or cultural barriers may unfortunately limit the
capacity of individuals to exercise such choice legal
impediments are
not to be countenanced unless clearly justified in terms of the broad
public interest. Limitation on the right
to freely choose a
profession are not to be lightly tolerated ...
(my emphasis)
[50]
In the case of
Nazo
[13]
the
Free State High Court held as follows
:
"
However
and although the practice of trade, occupation or profession may be
regulated by law, in my view the constitutional right
of freedom of
trade should not be undermined by restrictions
,
unless necessary in order to protect the rights of the public in
general
.
”
(my emphasis)
[51]
As far as the alleged limitation of Ms Strydom's right to exercise
her chosen profession is concerned, it would not seem to
me that her
choice to exercise her chosen profession is limited, what is limited
is her right to ask for payment of expenses which
fall foul of the
provisions of sec 301. The reason why sec 301 prohibits payments
other than those provided for is to prevent commercial
surrogacy. As
already pointed out the limitations' purpose is to prevent commercial
surrogacy, which is ultimately enacted to protect
the public
interest. Important issues of public policy arises which justifies a
limitation of Ms Strydom's right to ask payment
for her services.
Surrogacy is strictly regulated, not only here but also
internationally, and the reason for this regulatory framework
is
ultimately to protect the public against unscrupulous people who may
abuse vulnerable people. The limitations which are enacted
are
therefore acceptable in an open and democratic society and any
limitation in this regard is accordingly justifiable in terms
of sec
36 of the Constitution. I must pause to state that on the papers
there is no indication that Ms Strydom herself is unscrupulous
or
abuse vulnerable people, to the contrary it seems that her services
are highly regarded, but this does unfortunately not make
receiving
payment for those services lawful. The purpose of the limitation is
there for a greater good and as such is justifiable.
[52]
There is a very real danger in allowing surrogacy facilitation
agreements as literally anyone could give himself/herself out
as a
surrogacy co ordinator. The floodgates will be opened and with
no control, this could and probably will lead to exactly
what the
legislator attempted to prevent, namely, commercial surrogacy and the
abuse of vulnerable people.
[53]
It may well be that Ms Strydom renders an invaluable service, but
this is not the question. One appreciates that she can assist
people
who go through the process of surrogacy, because of her experience,
but I am of the view that the expenses she claims fall
foul of the
provisions of section 301 and accordingly the agreements between her
and the commissioning parents are declared unlawful
and
unenforceable.
CONFIRMATION
OF THE SURROGATE MOTHERHOOD AGREEMENTS
[54]
The question that now needs answering is whether the surrogate
motherhood agreements can be confirmed in the light of the fact
that
the surrogacy facilitation agreements were declared unlawful.
[55]
The pertinent question is whether the Court should refuse to confirm
a surrogate motherhood agreement, which complies with
the
Children's
Act, because
the Applicants have entered into an unlawful collateral
agreement with a third party.
[56]
On a perusal of the applications before me, there is no doubt that
the applicants in both the applications are competent to
enter into a
surrogate motherhood agreement, suitable to be parents or act as
surrogates and accept and understand the legal consequences
of the
surrogate motherhood agreement . The only impediment which may
jeopardise their applications is the fact that they have
entered into
the surrogacy facilitation agreements which the Court has now found
falls foul of the provisions of
section 301
and are consequently
unlawful.
[57]
It was argued that irrespective of what the Court may find about the
legality of the surrogacy facilitation agreement that
the Court
should confirm the surrogate motherhood agreements as the Applicants
have complied with all the requirements of the
Children's Act and
the
guidelines required by the Court. This contention, it was argued, is
further re-enforced by the provisions set out in
section 295(c)(e)
of
the children's Act, which reads:
"
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
".
[58]
The applicants' relied on the decision in
Ex
Parte Ms & Others
[14]
where the Court confirmed a surrogate motherhood agreement post
fertilisation despite the fact that section 298 prohibits
insemination
of a surrogate mother before the surrogacy agreement is
confirmed by Court. It was argued that, as was held in
Ex
Parte Ms & Others
,
in the event that a section of the
Children's Act is
contravened,
such contravention, even if rendered an offence, will not preclude a
Court from confirming an agreement.
[59]
In
Ms &
Others
the Court found that to interpret the Act as precluding the Court
from confirming a surrogacy agreement after artificial fertilisation
has taken place would undermine the Constitutional rights of the
parties, as the effect would be to render the agreement invalid
and
the child born a child of the surrogate mother. It would also mean,
that the Court's finding impinges the dignity of the commissioning
parents who would be denied the opportunity to experience a family
life of their own.
[15]
15
[60]
The Court in
MS
& Others
however
importantly also states as follows: "
It
is a well-established principle of our common law that an agreement
to commit an unlawful act is not enforceable. This includes
acts that
are unlawful in terms of a statute. An agreement to commit an
unlawful act is unenforceable, and an agreement to facilitate
or
encourage the commission of an unlawful act, even if indirectly, may
be unenforceable, provided the connection is sufficiently
close
".
[16]
[61]
The situation in
Ex Parte MS
is distinguishable from the
present matter as there is no danger that the rights of the unborn
child will be affected as the fertilisation
process has not commenced
yet. The rights of the commissioning parents will be impinged only to
a limited extent as they could
still enter into another surrogate
motherhood agreement which is not tainted by an unlawful collateral
agreement.
[62]In
the absence of any authority pertaining to surrogacy agreements the
principles that evolved in contractual law should be
considered
whilst keeping in mind that a surrogacy agreement is an agreement of
a special kind.
Christie
, states as follows:
"
In
considering the effect of the illegality of a contract or
transactions collateral or connected to it, the Court is concerned
to
ensure that it does not become an instrument to defeat the object of
the legislature or the common law in defining illegality.
This
concern has led to the evolution of two principles which must not be
confused. The first is that the indirect enforcement
of an
unenforceable contract will in no circumstances be permitted, whether
the law condemns the contract in the strongest terms
as legal and
immoral or merely renders it unenforceable. The second principle is
that the stronger the law's condemnation of the
illegal contract the
further the condemnation spread to include transactions which, while
not amounting to indirect attempts at
enforcement, tend to facilitate
or encourage the performance of illegal contract
".
[17]
[63]
In
Gibson
v Van Der Walt
[18]
18
the following was said:
"When
one has to consider whether connected acts are all tainted by a
reprobation attaching to one of them, the nature and
degree of that
reprobation cannot but play an important part. While, for instance, a
taint of criminality or immorality may attach
to a compromise on a
dispute arising out of a criminal or immoral transaction, a similar
compromise on a merely unenforceable but
otherwise not reprehensible
claim obviously carries no such taint, and the question of its
enforceability will have to be decided
by some other test
."
[64]
In the same vein the following was said in
Richards
v Guardian Assurance
[19]
:
"In
cases where indirect facilities are given to the commission of
illegal or immoral acts, the Court must use its discretion
in
deciding whether such facilities are too remote to have any bearing
upon such acts or whether they fall within the degree of
prohibition".
[65]
Christie
correctly states that "
the
Courts must feel their way from the example to example
"
[20]
as
it would seem that no definitive answer to the question exists and
the conclusion will depend on the circumstances of the case.
One will
accordingly have to look at the purpose of the limitations provided
for in the Act, the nature of the unlawful agreement,
the way in
which it is connected to the lawful agreement as well as the impact
of a declaration of either lawfulness or unlawfulness,
depending on
the circumstances, of each case. In this regard, the rights of the
parties, the purpose of the limitation as well
as the interests of
society should be considered.
[66]
The reason why the facilitation agreement was found to be unlawful is
that it falls foul of the provisions of sec 301, and
the reason for
the limitations set out in sec 301 is to prevent commercial
surrogacy. Court's must be loath to be seen to facilitate
or
encourage the performance of illegal contacts. There is a real danger
that Courts may unwittingly facilitate and encourage illegal
agreements if the surrogate motherhood agreement which emanates from
the illegal facilitation agreement is confirmed.
[67]
Consequently, when deciding whether one should confirm the motherhood
agreement, it is important to keep in mind why the legislature
has
created a strict regulatory framework within which only certain
limited expenses are allowed. The unlawfulness of commercial
surrogacy sits at the heart of the limitations provided for in the
Children's Act. This
entails that one must establish whether the
unlawful contract has tainted the lawful contract to such an extent
that the lawful
contract cannot be endorsed. From the aforesaid, it
would seem that the appropriate approach would be that the Court has
a discretion,
which discretion must be exercised keeping in mind the
purpose of the legislative framework and the ban on commercial
surrogacy.
[68]
I am of the view that a Court should be sensitive to the fact that if
Courts proceed to declare surrogacy agreements valid,
despite the
fact that it is tainted by an unlawful surrogacy facilitation
agreement, it might actually negate the whole purpose
of
section 301
,
and commercial surrogacy will have sneaked in through the back door.
Courts can't be seen to condone commercial surrogacy directly
or
indirectly in the light of the existing legislative framework. In my
view the invalidity of the subsequent surrogate motherhood
agreements
may in many instances be the unfortunate result of entering into an
unlawful surrogacy facilitation agreement.
[69]
I proceed to consider the circumstances in the matters before me,
keeping in mind the principles that should be applied. In
these two
applications a perusal of the psychologists reports reveal that the
two surrogate mothers do not seem to be vulnerable
women who may be
exploited. They seem to have considered the process and are willing
to do it on a purely altruistic basis. I also
take into consideration
the difficulty that people may have to find a suitable surrogate,
which difficulty is exacerbated by the
absence of a proper regulatory
framework pertaining to potential surrogates. I also take into
consideration that Ms Strydom may
have been under the
bona fide
impression that she is allowed to enter into the agreements with the
Applicants. In future however, with the Court's declaration
of
unlawfulness of the facilitation agreements now determined, there may
be some difficulty in persuading a Court that similar
agreements were
entered into
bona fide
.
[70]
I also consider the fact that the Applicants were obviously unaware
of the unlawfulness of the facilitation agreement and the
possible
consequences thereof. Although commercial surrogacy as such may be
morally reprehensible and unlawful the parties in these
applications
did not act in a morally reprehensible manner that could impact on
the validity of the agreement.
[71]
I also consider the very human desire of the Applicants to have
children and the fact that they, through no fault of their
own, are
unable to conceive a child themselves. In the light of the aforesaid
I am, in the circumstances of these two applications
of the view that
I should exercise my discretion and confirm the surrogacy motherhood
agreements despite the declaration of unlawfulness
of the
facilitation agreement.
Consequently
the following orders are made:
1.
The surrogacy facilitation agreement entered into between the
Applicants and Ms Strydom is declared unlawful and unenforceable,
in
both application 45037/2016 and application 61935/2016;
2.
The surrogate motherhood agreements entered into between the parties
hereto are confirmed;
3.
In both application 45037/2016 and application 61935/2016 an order is
granted in the following terms:
3.1
The child/children born of third applicant, in accordance with the
surrogate motherhood agreement entered into between the parties,
is/are for all purposes the child/children of the first and second
applicants from the moment of the birth of the child/children
concerned;
3.2
The first and second applicants shall have full parental rights and
responsibilities in respect of the child/children born of
the
surrogate motherhood agreement, whether in terms of the common law or
the Children's Act, 38 of 2005 ("the Children's
Act") (and
any amendments thereto) and/or any other statute which may be
promulgated or has been promulgated dealing with
parental rights and
responsibilities;
3.4
The registration of birth of the child/children as required in terms
of Chapter II of the
Births and Deaths Registration Act, 51 of 1992
,
shall be effected such that the first and second applicants shall be
registered as the parents of the child/children respectively,
as from
date of birth, given that first and second applicants are the parents
of such child/children;
3.5
No adoption procedures will be required in respect of the
child/children to be born of the surrogate motherhood agreement in
terms of
sec 297(1)(a)
of the
Children's Act;
3.6
The
third and fourth applicants shall have no rights of parenthood or
care in respect of the child/children born of the surrogate
motherhood
agreement, no rights of contact with such child/ children
and the child/children will have no claim for maintenance or of
succession
against the third or fourth applicants or any of their
relatives save such relatives who are the relatives of the first and
second
applicants and provided that such relatives have any duties
and or obligation in law in respect of the child/children born;
3.7
The identity of the parties to this application, or any facts which
may cause them to be identified, shall not be published;
3.8
The doctors concerned are authorised to perform the artificial
fertilisation procedures referred to in
sec 303
of the
Children's
Act;
3.9
No
artificial fertilisation on the third applicant may take place
after the lapse of eighteen months from the date of this order.
4.
Each party is to pay his/her own costs.
TOLMAY
J
Judge
of the High Court
Gauteng
Division, Pretoria
CASE
NO: 45037/16
DATE
OF APPLICATION: 23
NOVEMBER 2016
DATE
OF JUDGMENT: 9
FEBRUARY 2017
ATTORNEY
FOR APPLICANTS: ADELE VAN DER WALT INC
ADVOCATE
FOR APPLICANTS: ADV LE RETIEF
AMICUS
CUERIAE: CENTRE FOR CHILD LAW, UP
ADVOCATE
FOR AMICUS: ADV KOZAH
ATTORNEYS
FOR RESPONDENT: ADAMS & ADAMS
ADVOCATE
FOR RESPONDENT: ADV D JORDAAN
CASE
NO: 61936/16
DATE
OF APPLICATION: 23
NOVEMBER 2016
DATE
OF JUDGMENT: 9
FEBRUARY 2017
ATTORNEY
FOR APPLICANTS: ROBYNNE FRIEDMAN ATTORNEY
ADVOCATE
FOR APPLICANTS: ADV C WOODROW
[1]
In re:
Confirmation
of Three Surrogate Motherhood Agreements
2011(6)
SA 22;
Ex
parte WH
2011(6) SA 514,
[2]
Sec 301
of the
Children's Act, Davel
& Skelton, Commentary on
the Childr4en's Act, 19 - 30 [2013] 564 at 570, See Ex Parte WH,
supra, par 43 - 53 for a summary
of the position pertaining to
commercial surrogacy in other countries
[3]
Louw A, THRHR [2013] 564 at 580,
Surrogacy
in South Africa: Current approach to be Reconsidered?
[4]
Louw, Supra, p 572
[5]
Ex
parte: MS
2014 (3) SA 415
GP par49
[6]
WH
,
supra, par 64
[7]
AB
,
Surrogacy
Advisory Group v Minister of Social Development and Centre for Child
Law Case
CCT 155/15 (CC)
[8]
Sec 305
(6) and (7) of the
Children's Act
[9
]
WH
,
Supra, Par 65
[10]
Natal
Joint Municipal Pension Fund v Edumeni Municipality
2012(4) SA 593 (SCA);
S
v Zuma
1995(2) SA 642(CC) at par 15;
S
v Makwanyane
1995(3) SA 391 (CC)
[11]
Department
of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd
2007(6) SA 199 CC;
National
Coalition for Gay and Lesbian Equality v Minister of Justice
1999(1) SA 6 (CC)
[12]
Affordable
Medicines Trust and Others v Minister of Health and Others
2006(3) SA 247 (CC) [59] - [60].
[13]
Nazo v
Free State Gambling & Liquor Authority and Another
,
In re:
Jacobs V Free State Gambling &
Liquor
Authority and Another
(2386/2015) [2015) ZAFSHC 227.
[14]
2014(3) SA 415 GP;
Sec 303
makes it an offence to artificially to
fertilise a woman in execution of a
surrogacy
agreement without authorisation by a court for such fertilisation
[15]
Supra, par 50 and 51.
[16]
Supra, par 31, p 422.
[17]
Christie,
The
law of Contract
,
4
th
ed, p 456
[18]
1952(1) SA 269 H
[19]
1907 TH 24 28
[20]
Christie,
supra,
p 457, See also
Pick
'n Pay Stores Ltd v Trek Petroleum (Pty) Ltd
1976(2) SA 302 W
on
306