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Surrogacy agreement confirmation applications have become voluminous. This is often caused by the extensive nature of the clinical psychologist’s report on the suitability of the intended surrogate mother. The reason why these reports have grown into novels is that their authors are shooting in the dark. Chapter 19 of the Children’s Act 38 of 2005 (the Children’s Act) requires that a surrogate mother must be a ‘suitable person’ but does not provide any criteria to determine ‘suitability’. Suitability is not a psychological concept, but an undefined legal requirement. Psychologists are, therefore, required to provide an opinion to the court without any guidance as to how they should construct such an opinion. Consequently, in an apparent attempt to cover all their bases, psychologists’ reports have become quite exhaustive – sometimes even including an analysis of psychometric tests performed on the intended surrogate mother. The problem is compounded by the fact that a particular judge does not necessarily share a particular psychologist’s opinion about what kind of person a surrogate mother should be.

This problem was vividly illustrated in Ex Parte KAF and Others (GJ) (unreported case no 14341/17, 10-8-2017) (Modiba J) (Ex Parte KAF I) where the court rejected the clinical psychologist’s conclusion that the intended surrogate mother – a 20-year-old, stay-at-home mother of two young children – is ‘suitable’. The court’s reason was that the intended surrogate mother had a teenage pregnancy four years before the application. The court held that the intended surrogate mother did not possess the maturity to appreciate the implications of her life decisions. In the absence of objective criteria for determining a surrogate mother’s suitability, these kind of subjective differences in opinion can be expected. However, this hardly makes for legal certainty. In the highly emotive world of reproductive legal practice, this is a recipe for tears.

The same parties approached the court again on supplemented papers in Ex Parte KF and Others 2019 (2) SA 510 (GJ) (Ex Parte KAF II). This time around, the applicants’ legal strategy was explicitly to develop the law by requesting the court to adopt objective criteria for determining a surrogate mother’s suitability.

They did this by commissioning a joint expert opinion from three clinical psychologists who all have experience in assessing the suitability of surrogate mothers and requesting the three clinical psychologists to propose – with reasons – objective criteria for assessing the suitability of a surrogate mother. The joint expert opinion suggested eight distinct criteria for assessing the suitability of a surrogate mother. A fourth clinical psychologist was then commissioned to assess the intended surrogate mother by using the criteria. The clinical psychologist applied the criteria and concluded that the intended surrogate mother was indeed suitable. The court in Ex Parte KAF II accepted this conclusion and confirmed the surrogacy agreement. Importantly for future surrogacy agreement confirmation applications, the court accepted and incorporated, with some reformulations, the criteria as per the joint expert opinion in its judgment.

The objective criteria for assessing the suitability of a surrogate mother

• According to DW Thaldar ‘Criteria for assessing the suitability of intended surrogate mothers in South Africa: Reflections on Ex Parte KAF II’ (2019) 12(2) SAJBL 61 ‘[a] suitable surrogate mother must understand the nature of surrogate motherhood.’ An intended surrogate mother must demonstrate that she fully understands that she will be carrying the pregnancy for the commissioning parents and that once the baby is born, such child will legally not be hers, but that of the commissioning parents.
• There must be an agreement between the parties regarding selective reduction. Selective reduction is perhaps one of the more sombre issues that must be addressed in surrogacy agreements depending on the number of children the commissioning parents’ wishes to have. In some instances, the commissioning parents may not wish to have a multiple pregnancy, and the surrogate mother may be asked to undergo ‘selective reduction’, which is the termination of multiple embryos that have already been successfully implanted in the uterus to the desired number. Under this criterion, all the parties have to be in perfect alignment about the potential use of selective reduction, and the intended surrogate mother must understand the concept of selective reduction and all the risks involved.
• Thaldar (op cit) states: ‘A suitable surrogate mother must be motivated by wanting to help the commissioning parents without expectation of reward.’ Under this criterion, the court concentrated on the budget for out-of-pocket expenses that would be expected of the commissioning parents to reimburse the surrogate mother as the only relevant consideration on which to judge altruism. It is important to note that while out-of-pocket expenses can be reimbursed and how much of these expenses can be reimbursed may differ from case to case, the figures accepted by the court in the Ex Parte KAF II case can be seen as an authoritative yardstick. In Ex Parte KAF II, notwithstanding other uncapped expenses, the court accepted a total amount of R 5 500 per month as reimbursement for cellular phone calls, pregnancy nutritional supplements and wages for a domestic worker.
• According to Thaldar (op cit) ‘[a] suitable surrogate mother must enjoy good mental health.’ A surrogate mother ought to have good psychological wellness. The surrogate mother must not have any personality disorder or serious psychiatric illness or show patterns of self-injurious behaviour.
• Thaldar (op cit) states: ‘A suitable surrogate mother must be emotionally well-resourced.’ According to the joint expert opinion, being ‘emotionally well-resourced’ entails that the intended surrogate mother ‘must either be emotionally self-reliant or have a ready and established emotional support structure’ (see Thaldar (op cit)). A surrogate mother does not always need to have a supportive family but it is rather important to examine how ‘surrounding partnerships’ are conducive to the surrogacy arrangement being complied with by the surrogacy mother. As such, an assessing clinical psychologist is obliged to report on the ‘understanding and influence of the spouse, partner, relatives or extended family on the decision [to be a surrogate mother].’
• Thaldar (op cit) writes: ‘A suitable surrogate mother must be emotionally available for her own child or children.’ According to s 295(c) of the Children’s Act, a surrogate mother is required to have ‘at least one living child of her own.’ In addition, an intended surrogate mother ought to be emotionally available for her own children as a way of protecting the children’s welfare. Based on their ages and level of understanding, this also includes the surrogate mother’s readiness to discuss the intended surrogate pregnancy with her children.
• A suitable surrogate mother must not engage in substance abuse of any kind, and must undertake to refrain from smoking or drinking alcohol during the pregnancy. The court, however, focused solely on substance abuse and thus, the issue of social drinking of alcohol and smoking during the pregnancy remained unspoken of.
• The intended surrogate mother must be financially stable, that is, she or her family unit must:
  • have a stable source of earnings; and
  • live within her or their means.

This criterion was omitted by the court in its reformulated criteria, the court did apply it when assessing the reimbursable expenses.

Conclusion

The Ex Parte KAF II judgment now serves as the yardstick with which to assess the suitability of intended surrogate mothers. Both clinical psychologists and legal practitioners – including judges – now have clear guidelines in this regard.

Tamanda Kamwendo LLB (University of Botswana) LLM (UKZN) is a PhD Fellow at the University of KwaZulu-Natal in Durban.

This article was first published in De Rebus in 2020 (July) DR 16.