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Surrogacy can be described as a woman (the surrogate mother) carrying a foetus for a couple or a single parent (the commissioning parents) until the birth of the child (Caroline Nicholson and Andrea Bauling ‘Surrogate motherhood agreements and their confirmation: A new challenge for practitioners?’ (2013) 46 DJ 510). Chapter 19 (ss 292 – 303) of the Children’s Act 38 of 2005 regulates surrogacy and surrogate motherhood agreements. Section 1 of the Children’s Act defines such agreement as one between the surrogate mother and the commissioning parents to artificially fertilise the surrogate mother, with the aim of bearing a child for the commissioning parents. Ex Parte WH and Others 2011 (6) SA 514 (GNP) described such agreement as a ‘contract of a special kind, unique if regard is being had to its subject-matter’ (para 71). Once the agreement is concluded between the parties, it is brought before a High Court for confirmation (s 292(e) of the Children’s Act), prior to the surrogate being artificially fertilised.
Even though unregulated surrogacy has existed since biblical times (Genesis 16:1 – 15), regulated surrogacy is a relatively new concept in South Africa’s (SA’s) legal sphere (Peter R Brinsden ‘Gestational Surrogacy’ (2003) 9 Human Reproduction Update 483), and therefore there are, to date, only seven reported judgments on surrogacy in SA. Thus, there is some uncertainty as to the circumstances under which a High Court will confirm an agreement. This article aims to explore these circumstances, and to provide clarity to legal representatives when bringing an application before the High Court, in view of the provisions of the Children’s Act and especially case law.
The first reported judgment on surrogacy, namely In re Confirmation of Three Surrogate Motherhood Agreements 2011 (6) SA 22 (GSJ), was reported in 2011. In that case, the court emphasised that detail in ensuring the best interests of the surrogate child must be present in the application:
‘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’ (para 16).
Section 295(e) of the Children’s Act also emphasises this principle as being an integral factor in deciding on whether a court should confirm an agreement.
The consideration of the best interests of the child was particularly the focus in Ex parte CJD and Others 2018 (3) SA 197 (GP). In this case, the court doubted whether the agreement would be in the best interests of the child due to the facts of the case, and the psychologist’s report on the commissioning parents, being a same-sex couple. Initially HN (the second applicant) did not want a child (identities of parties remain anonymous in surrogacy applications, in view of Practice Directive 5 of 2011 (Application for Confirmation of Surrogacy Agreements in terms of s 295 Children’s Act)). HN further hid his sexual orientation as he feared it might affect his medical practice, and thus the couple did not live together (para 4). Further, the court held that neither the affidavit, nor the supplementary affidavit dealt with the best interests of the child, and how the circumstances and attitude of HN might affect the child, as well as the fact that the child’s parents would not be living together (para 9). The court argued that ‘it is difficult to comprehend a notion where a child is conceived by way of a process of surrogacy on the basis that, from the start, its parents won’t be living together as a family unit or sharing a common household’ (para 21). In emphasising its role as upper guardian of all children, the court ultimately denied the confirmation of the agreement, as the interests of the child have to take precedence over that of the (commissioning) parents’ rights (para 10). This case set precedent for the fact that legal representatives need to ensure that the best interests of the unborn child are adequately and thoroughly addressed in the application and the agreement.
An agreement creates a certain standard, which must be complied with by the commissioning parents and the surrogate, as is detailed by s 295 of the Children’s Act. The court held in In re Confirmation of Three Surrogate Motherhood Agreements that a court must be given sufficient detail on ‘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’ (para 17). Further, details on the permanent and irreversible condition of the commissioning parents need to be given (para 20), and a detailed assessment by a psychologist, namely one which is not ‘superficial and unreliable’ (para 21). In the Ex Parte WH and Others matter, the court further held that there should be ‘details of previous criminal convictions’ (para 69). Therefore, ‘proper and full’ details need to be provided, to ensure that a decision can be made on the fitness of the commissioning parents (In re Confirmation of Three Surrogate Motherhood Agreements at para 24).
Regarding suitability of the surrogate mother, the court in Ex Parte WH and Others held that extensive detail must be given on the surrogate mother’s ‘background as well as her financial position’ (para 67). Both the psychologist’s report and medical reports must be provided, which would assist the court in deciding whether the surrogate mother is suitable in terms of both mental and physical health, and thus whether she will be able to handle the potential trauma of handing the baby over at birth, whether she has any medical diseases and/or if the pregnancy will pose any danger to her health (para 67). However, it was argued in the Ex Parte WH and Others case that when the question of the best interests of the child comes into play, the court must be careful in not ‘setting the bar too high for parents whose only option is to have a child by way of surrogacy’ (para 63). The court ultimately concluded that an objective test must be applied when deciding on the suitability of any person involved, based on the information provided in the affidavit and reports, and in view of the extent of care the child will be provided with (para 70).
The case of Ex Parte KF and Others 2019 (2) SA 510 (GJ), is the most recent reported judgment on surrogacy, and dealt with a similar issue as was discussed in Ex Parte WH and Others, being the suitability of the surrogate mother. In Ex Parte KF the court was concerned whether the surrogate would be able to properly appreciate the ‘consequences of her decision’ to become a surrogate mother (para 20), specifically due to her financial situation, age and the fact that she had had a teenage pregnancy. The court further acknowledged the ‘need to develop further the guidelines and the requirements set out in Ex Parte WH’ (para 20), as well as s 295(c)(ii) of the Children’s Act (para 17). The court in Ex Parte KF thus went further than the Ex Parte WH and Others case, and set out precise factors, which must be contained in an application when dealing with the suitability of a surrogate mother, these factors being ‘the personal clinical assessment’ of the surrogate mother, as well as her current circumstances, being supported by ‘other collateral information’ (para 27). This type of information includes whether the surrogate is in a state of good physical health to carry the child, has an agreement in place with the commissioning parents regarding ‘selective reduction’, is in a state of good mental health and has no ‘history of substance abuse’ (see paras 27.1 – 27.4).
The court in Ex Parte KF further emphasised the importance of the surrogate mother having emotional support (para 28). Therefore, the emotional resources that the surrogate might need or that are currently in place, the ‘quality and stability’ of the current emotional support structures, and whether the relationships supporting the surrogate mother are stable enough to allow the ‘fulfilment of the surrogacy agreement’ must also be supplied in a report (para 28). The court further held that the surrogate mother must understand the nature and importance of the decision to become a surrogate mother (para 29). Therefore, in view of this, the court in Ex Parte KF held there must be a further report indicating what ‘psycho-social support structure’ is in place for the surrogate mother, whether her family, spouse/partner and friends understand and accept the decision she has made and will thus not influence her to terminate or breach the agreement. Further, whether there is an understanding that the child will belong to the commissioning parents, and whether the surrogate mother will be supportive towards her own child/children (see paras 29.1 – 29.6) – this is especially important because the Children’s Act does not make provision for the support that the surrogate’s children could need during this process.
The use of an agency in the surrogacy process is not directly dealt with in the Children’s Act, however, s 301, and specifically s 301(1), implicitly deals with the use of such an agency. In the Ex Parte WH and Others case, the court held that there would be a potential for abuse if an agency is involved, and could lead to the exploitation of surrogate mothers (para 64). Therefore, the court emphasised that where an agency is involved, the affidavit must clearly state that no fee was paid to the agency, full particulars regarding the agency must be set out, including whether the surrogate received compensation from the agency (see para 66). Similarly, in Ex Parte HPP and Others 2017 (4) SA 528 (GP) the court had to decide whether the use of a surrogacy facilitator (from a surrogacy agency) would infringe on s 301 of the Children’s Act, and thus lead to commercial surrogacy. The court emphasised the importance of legal representatives disclosing in the affidavit all amounts, which were paid to such agency, this being due to the fact that the court has to be able to rely on the good faith of the legal representatives in ex parte applications (para 9). The court further held that ‘the attorney in a surrogacy application should file an affidavit confirming that as far as he/she could ascertain no payments were made to anyone apart from those provided for in the Children’s Act’ (para 33).
In Ex Parte HP and Others, the court was wary to approve the payments made to the facilitator (para 19). The court examined the Ex Parte WH and Others judgment, and emphasised that the use of an agency may lead to commercial surrogacy, and commercial surrogacy leads to the potential for abuse of, especially, underprivileged women (para 26 and 33). In grappling with the issue of surrogate facilitators, the court suggested that a regulatory framework be set up, being a database with the names of potential surrogate mothers (para 39). However, as no such database exists, any party involved in the surrogacy process, being the surrogate facilitator or the surrogate, must file an affidavit disclosing all facts and particulars. The court should also be able to ask for further information if needs be, and each court will have to utilise its discretion and act on a case-by-case basis (para 39).
In view of the above it is clear that the best interests of the child principle acts as an integral factor in whether the court will confirm an agreement. Along with this, courts in surrogacy cases regularly request further information, affidavits or reports, and thus legal representatives should always be ready in the event of such a request. The court in In re Confirmation of Three Surrogate Motherhood Agreements emphasised that a strict screening process must be relied on in surrogacy applications, and that ‘[i]n matters where the interests of children are paramount … the applicants must supply proper and full details regarding themselves’ (para 25). Therefore, if insufficient detail is provided in an application, the court will not confirm the agreement, as a court is not a ‘rubber stamp’ for these applications (In re Confirmation of Three Surrogate Motherhood Agreements at para 25). In drafting such applications the legal representatives must ‘take care to draft papers in a proper manner, and not to just shoddily copy and paste other applications’ (In re Confirmation of Three Surrogate Motherhood Agreements at para 5). The confirmation of these agreements results in much excitement and happiness for the commissioning parents, and thus when a legal representative ensures that the application is thoroughly and correctly drafted and granted, this will be rewarding in itself.
Natalie Meyer LLM (Stell) is a legal practitioner and legal researcher in Stellenbosch.
This article was first published in De Rebus in 2020 (Sept) DR 22.
