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Surrogate motherhood requirements

The most recent case law on this is that of In re Confirmation of Three Surrogate Motherhood Agreements 2011(6) SA 22 (GSJ).  On 7 January 2011 three applications to confirm surrogate motherhood agreements in terms of the Children’s Act 38 of 2005 were brought before the court.

Apart from the fact that no grounds for urgency were made out at all, the three applications were copied and pasted and thus duplicated to a large extent in each instance.  Each application stated that it relied on the founding affidavit of one BCB and annexures thereto.  However BCB made no affidavit in the second and third matters as he has no interest in them.

The two applications incorrectly referred to annexures which were not attached to them.  The three applications also sought an order that section 297 of the Children’s Act would apply.  There is no section 297 in the Act.  The application also sought an order that the Addendum of the Surrogate Motherhood Agreement be confirmed by the court.  There were no addendums attached to the surrogate motherhood agreements.

The applicant in the first application was a 43 year old single male.  The surrogate mother was married to the third applicant, also a female.  The applicants in the second application were a married couple, one male and one female.  The surrogate mother was a divorced female.  The applicants in the third application were a married couple, one male and one female.  The surrogate mother was a female married to a male.

Judge Wepener indicated that he was not going to go into detail on the pros and cons of surrogacy or the social or the ethical arguments regarding the practice of surrogacy.  He stated that judges must confirm whether the agreement is in the best interest of the child.

The court found that the court must know who the commissioning parents are, what their financial position is, what support systems they have in place and what their living conditions are and how the child will be taken care of.

The court pointed out that the first applicant doesn’t supply facts backing up the allegation in the papers of being “financially secure”.  The court further pointed out that in the second application the applicants did not supply facts backing up that they are indeed “in all respects suitable to accept parenthood”.

Wepener found the applications to be shoddily drawn.  The court found that future applications had to comply with the requirements listed by the Deputy Judge President of the GSJ in Practice Directive 5 of 2011 regarding all applications for confirmation of surrogate motherhood agreements.

Wepener ordered that the applications were postponed sine die (“without a date”) in order for the applicants to correct and supplement their applications to properly comply with the provisions of the Act and to place sufficient information before the Court to enable it to consider the matters on their merits. 

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