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Judge sets Guidelines for Surrogacy Agreements



Several provisions in the Children’s Act 38 of 2005 encourage parties to try to reach an agreement on certain issues. For instance, section 292 read with sections 293 and 295 of the Act requires that a surrogate mother and her husband or permanent life partner and the commissioning parents or the commissioning parent and his or her spouse or permanent life partner may enter into a surrogate motherhood agreement to provide for matters not regulated by the Act. Although no mention is made of mediation in these sections, mediation can surely play a vital role in facilitating negotiations between the parties in surrogacy matters. It is therefore very important for mediators to take note of an interesting new decision made in a surrogacy case, where the Gauteng High Court (Pretoria) has set new directives which courts should take into consideration before granting surrogate motherhood agreements. The following was said about this case on Legalbrief on 22 March 2022:





Litigation: Judge sets guidelines for surrogacy agreements

A Gauteng High Court (Pretoria) judgment has set new guidelines for courts to take into consideration before granting surrogacy agreements. The new directives require that a medical clinical assessment of the surrogate mother be made if she has had any medical history posing a risk to surrogacy. According to a TimesLIVE report, they also require a clinical interview with the surrogate mother’s children to prepare them for the surrogacy journey and also take care of the minor children’s emotional needs. The case involved a couple who could not have children and sought to enter into a second surrogacy agreement with a woman who carried their first child that was born in May 2021. The surrogate mother and her partner are married and have two children of their own, aged 10 and seven. She has had three surrogate pregnancies since 2019, leading to a miscarriage in one, the birth of twins in the second and the birth of the present commissioning parent’s first child last year. Though the law provides that a court may confirm a surrogate motherhood agreement if the surrogate mother has a living child of her own, the court in this case had questions about the interests of the child of the surrogate mother. ‘How does a surrogate pregnancy affect the surrogate mother’s own child/children – bearing in mind that they watch her pregnancy for nine months, they know she is carrying a child, they see her going to a hospital to deliver the baby (and she may be away from them for a period after giving birth) and then she comes back home without a baby in her arms? Is it important that the interests of these children be protected and, if so, how does a court do that?’ Judge Brenda Neukircher asked.


The court also had questions about the children the commissioning parents may already have. The judge noted in many cases, these children may suddenly be confronted with this ‘stranger’ that now takes up their parents’ time and attention. TimesLIVE notes that when the judge first heard the application in November last year, the surrogate mother had delivered the commissioning parents’ first child a mere six months earlier. What was of concern to the judge was the effect of three births in three years on her body. Neukircher ordered that a psychologist conduct an assessment regarding the surrogate mother’s suitability to act as a surrogate for the fourth time. The judge also ordered that a further report by an obstetrician or gynaecologist be prepared regarding her physical suitability (and any risks) to carry a child. It was also ordered that a clinical psychologist conduct an assessment of the surrogate parent’s two minor children with specific attention paid to the effect on them, if any, of their mother’s pregnancies. The reports showed that the surrogate mother was physically and mentally suitable to carry a child as a surrogate mother. An assessment of the surrogate mother’s children showed that both children are well informed about surrogacies and are proud of the fact that their mother assists other couples in becoming families. After receiving this information, Neukircher confirmed the surrogate motherhood agreement. Neurkicher said the information she obtained should in future cases be placed before a court to safeguard the interests of the surrogate as well as any existing children of the commissioning parents and the surrogate.

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