Ex parte WH 2011 6 SA 514 (GNP) : recent case law

• Published date: 01 January 2012
• Date: 01 January 2012
• Pages: 179-188
• DOI: 10.10520/EJC135307
• Author: M. Carnelley

179

Onlangse regspraak/Recent case law

Ex parte WH

2011 6 SA 514 (GNP)

Discussion of genetic links and monetary payments in South African and foreign

surrogate mother agreements with particular reference to the English

experien ce

1Introduction

1 1 Background and Aim of the Note

The legal requirements pertaining to a surrogate motherhood agreement

(SMA) in South Africa are contained in Chapter 19 of the Children’s Act

(38 of 2005) (CA). On 27 September 2011, Tolmay J and Kollapen J

delivered the first available reported judgment that resulted in the

confirmation of an SMA:

Ex parte WH

2011 6 SA 514 (GNP). In a

previous judgment –

Ex parte applications for the confirmation of three

surrogate motherhood agreements

2011 6 SA 22 (GSJ) – the agreements

were not confirmed by the court, due to lack of evidence (for a discussion

of the latter case, see Soni & Carnelley “Surrogate Motherhood

Agreements” 2011 (May)

De Rebus

30-35). However, to date there has

been no judgment relating to foreign SMAs involving South African

commissioning parents, although such arrangements are not unheard of.

The first aim of this note is firstly to assess the SMA agreement as it

crystallised in the judgment of

Ex parte WH

, in light of the two particular

statutory requirements: the origin of the gametes (genetic material) used

for the artificial fertilisation of the surrogate, and any payments made in

connection with the SMA. All the South African legislative provisions

relating to surrogacy will not be discussed in detail, as this has been done

previously (see Carnelley & Soni “A tale of two mummies. Providing a

womb in South Africa: surrogacy, the agreement and the legal rights of

the parents within the CA. A brief comparative study with the United

Kingdom” 2008

Speculum Iuris

36 36 -52). The second a im of the n ote is

to discuss the issue of foreign SMAs. This focuses on South African

couples entering into an SMA with a foreign surrogate, and the

consequences of the agreement thereafter in South Africa.

The comparative legislative provisions in England (and Wales) will be

discussed relating to both genetic links and monetary payments, and will

be compared to the outcome in

Ex parte WH

. In addition, the

comparable English legal principles dealing with foreign surrogacy will

also be discussed, in light of numerous recent English court decisions

dealing with these issues.

The note will commence with a brief overview of the relevant

statutory provisions in both jurisdictions. This is followed by a discussion

of the South African case of

Ex parte WH

, specifically the section relevant