Donald Dinnie

It is now over 10 years since the Children’s Act has provided for surrogate motherhood agreements. Previously our law considered those contracts to be against public policy.

The Children’s Act sets out the requirements of and circumstances for a valid surrogacy agreement and the legal effect of the surrogate motherhood agreement on the status of the child and relationship with all the parties to that agreement. 

A surrogacy agreement that does not comply with the Children’s Act is invalid. Any child born as a result of that agreement is deemed to be the child of the woman who gave birth to that child. Medical practitioners who contravene the provision of the Act, for example, fertilising women before the agreement has been confirmed by the court, may be criminally charged under the act. 

The most recent judgment dealing with surrogacy agreements is that of the Gauteng High Court in June 2018, in KAF, CF, ND and JD (as Applicants) in an application for confirmation of a surrogate motherhood agreement as contemplated in terms of the Act. 

Confirmation of a surrogacy agreement is at the discretion of the Court. The Court is not there merely to “rubber-stamp” agreements and is required to be apprised of all facts pertaining to the parties and their circumstances and will scrutinise the value chain in relation to and between the parties to ensure that the agreement is lawful and meets all the requirements of the Act. 

The Act is alive to the dangers of commercialisation of surrogacy. The parties are prohibited from receiving a commercial benefit out of the agreement. That prohibition is not one-sided. It is to prevent the potential exploitation of commissioning parents from likely financial damage as well as the possible exploitation and commodification of would be surrogates as well as the rights of the child to be born. It limits payments to reasonable expenses only.  In approving an agreement, the Court considers whether payments could be construed as cloaked payments made under the guise of legal and legitimate payments in contravention of the law. An evaluation of the financial benefit accruing to the surrogate mother cannot mean that she must be financially well-off nor may it mean that she may not derive an advantage at all for the duration of the pregnancy. The benefit should not place the surrogate beyond her ordinary standard of living. 

In approving a surrogacy agreement, the Court is also required to consider whether:

·         the surrogate mother is in all respects a suitable person to act as a surrogate mother;

·         whether in general having regard to the personal circumstances and the family situation of the parties concerned but above all, the interests of the child that is to be born, that the agreement should be confirmed.

In assessing and reporting on the suitability of the surrogate mother an evaluation must be conducted with the purpose of safeguarding :

·         the health of the child to be born;

·         the fulfilment of the surrogate motherhood contract;

·         the prevention of potential commercial exploitation of the commissioning parents and the surrogate mother in equal measure.

The Court has now confirmed that all of these issues are inter-dependent. The requirements are both quantitative and qualitative. Whilst the assessment is an objective one the decision must be made in the individual circumstances of the applicants which will differ from case to case.

Some guidelines have been set out in earlier decisions for determining the fulfilment of these criteria. The Act does not establish any objective criteria and guidance on the supporting documents an applicant should put before the Court in support of confirmation of the agreement. Because of the discretionary powers conferred, and the likely different circumstances where the Court’s approval is sought, each Court may of course construe the parameters for the exercise of its discretion differently from the next.  

The Courts have consistently held that a comprehensive report by a psychologist is essential to assess the suitability of the surrogate mother and should deal with her background, her psychological profile and the effect of the surrogacy and the giving up of the baby will have on her. 

The most recent judgment acknowledges that the requirements for assessing the suitability of a person who acts as a surrogate mother is unclear and there is a need to develop further the guidelines and the requirements set out in earlier judgments. 

The judgment usefully sets out further guidelines regarding the personal clinical assessment of the prospective surrogate mother and her surrounding circumstances, the emotional welfare, emotional needs and resources available to the surrogate mother, and the surrogate mother’s understanding of the nature of the surrogacy relationship. In each circumstance that judgment provides some useful particularity as to what the reports should deal with. Any practitioner providing such report should have regard to those guidelines set out in the judgment.

On the evidence and reports presented the Court was satisfied that the relevant criteria and suitability of the requirements of the Act were met and accordingly approved the agreement.

Practitioners and patients alike should be alert to the significant consequences of a surrogate motherhood agreement – including the status of the child born as a consequence of that agreement; the fact that the surrogate mother, spouse or partner and relatives have no rights of parenthood or care of the child or rights of contact (unless provided for by that agreement); that without confirmation by the court the agreement may not be terminated after artificial fertilisation of the surrogate mother has taken place; that the child will have no claim for maintenance or succession from the surrogate mother, husband or partner or any of their relatives; that the surrogate mother alone may decide to terminate a pregnancy but is required to inform and consult with the commissioning parents; and the requirement of confidentiality of the parties, and their identity, to any agreement.

*Donald Dinnie, Medical Defence Lawyer