Ex parte WH and Others

• Jurisdiction: South Africa
• Judge: Tolmay J and Kollapen J
• Judgment Date: 27 September 2011
• Docket Number: 29936/2011
• Hearing Date: 22 August 2011
• Counsel: B Neukircher SC (with LC Haupt and G Kyriazis) for the amici curiae, instructed by the Centre for Child Law.
• Court: North Gauteng High Court, Pretoria

Tolmay J and Kollapen J:

Introduction B

[1] This is an application in terms of s 295 of the Children's Act 38 of 2005 (the Act) for the confirmation of a surrogacy agreement. Surrogacy can be defined as an arrangement in which a woman carries and delivers a child for another couple or person.

[2] Although one may be tempted to think that the problem of surrogacy C is a new one, it would seem that since biblical times people who could not have children opted for forms of surrogacy. For example, men were exhorted to impregnate their widowed sisters-in-law to secure heirs for their dead brothers. [1] There are also instances where husbands whose wives were infertile engaged in sexual relationships with a family servant D to provide a child for them. [2] Informal surrogacy, arrived at more often by private agreement between family members or people known to each other, was and continues to be practised in many societies.

[3] Surrogacy was not recognised in South Africa before the enactment E of the Act even though there have been many reported instances of informal surrogacy being practised. The Act now provides a mechanism for many who desire a child and for whom informal surrogacy is not an option. This has understandably resulted in a growing number of applications in this division seeking the confirmation of the court of surrogacy agreements.

[4] Children occupy a special place in the social, cultural and legal F arrangements of most societies. That this is so is understandable in recognition of both the vulnerability of children and the almost instinctive need to advance their wellbeing and ensure their protection, as well as the compelling human and social imperative to pursue and further G their best interests as they are set on the path of developing their full potential and taking their rightful place as full and responsible citizens of society. The preamble to the United Nations Convention on the Rights of the Child provides that 'the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding'. H

[5] In South Africa the social order recognises this commitment and it is given expression in a variety of ways in the Constitution as well as the legal framework that has followed the adoption of the Constitution. Both the preamble and the founding provisions of the Constitution evidence an intention to create a society based on fundamental human rights and I

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A freedoms, and the recognition of the inherent worth and dignity of each person. The Bill of Rights, beyond its unequivocal commitment to the achievement of equality and the prevention of unfair discrimination, deals extensively with the rights of children.

[6] In very much the same way as society's architecture is structured to B advance the best interests of the child, so too does it reflect and give response to the desire of many to have children of their own. For some it represents the fulfilment of the agency of their own lives and existence as they seek to continue their lineage and their legacy, while for others the vision of a family living and loving together is rendered complete with C the arrival of a child. Of course there are those who for valid reasons of their own elect not to have children and the law, in similar vein, recognises the choices people may make not to have children.

[7] To this end children play a vital role in how the values, cultures and traditions of a people are held in collective safekeeping and passed on to D future generations, matters central to both the protection and the extension of the identity of a people. The law and social practices must accordingly and in an appropriate fashion be responsive to and facilitate, to the extent that it can, this process which in many respects represents the animating energy in the lifeblood and in the continuity of a people.

E [8] In all of this the role and place of the family as an important social unit around which relations are structured and nurtured has been acknowledged and recognised as pivotal. The Universal Declaration of Human Rights proclaims that 'the family is the natural and fundamental group unit of society and is entitled to protection by society and the State'. The International Covenant on Civil and Political Rights, as well F as the African Charter on Human and Peoples' Rights, contain similar provisions which affirm and properly recognise the role and place of the family within the broader design of society.

Background to the application and invitation to the amici curiae

G [9] In order to ensure consistency and develop a uniform practice in matters of this nature, the Deputy Judge President constituted a court to consider this application and to determine and provide guidelines on how similar applications should in future be dealt with.

[10] Consequently the court invited the bar, the law society and the H Centre for Child Law to make submissions as amicus curiae to the court regarding the correct approach in surrogacy agreements and required them to address the following in their submissions:

[10.1]

the approach that should be followed where the genetic material used is not that of the parties;

[10.2]

the approach, if any, that should be followed when same sex I couples apply for a surrogacy agreement to be made an order of court; and

[10.3]

the appropriate steps that should be followed and factors to be considered to determine the best interests of the child.

[11] The Pretoria Bar and the Centre for Child Law together with J counsel for the applicants filed helpful heads of argument and also

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contributed by presenting oral argument at the hearing of the matter. We A are indebted to them for their invaluable contribution.

[12] After perusing the papers in this matter and noting that an agency Baby-2-Mom introduced the surrogate mother to the commissioning parents the court also requested the applicants to deal with the following:

[12.1]

To file a supplementary affidavit setting out the procedures B followed by Baby-2-Mom in facilitating surrogacy.

[12.2]

To provide, if there was any additional agreement between the applicants and the potential surrogate mother, a copy of such agreement or the terms of such an agreement.

[12.3]

All the agreements, if any, entered into between Baby-2-Mom C and the applicants and Baby-2-Mom and the surrogate mother.

[12.4]

To indicate whether the applicants paid Baby-2-Mom any compensation for services rendered. If so, what amount was so paid.

[12.5]

To indicate whether Baby-2-Mom paid the potential surrogate mother any compensation. If so, full particulars of such compensation D was required.

[13] It warrants mention that the rationale for requesting the additional information was not located in any suspicion or distrust of the parties or the agency, but rather to ensure that in the determination of the application and the relief sought the court was apprised of all the facts which would include all facts relevant to the Baby-2-Mom agency. E

The background to this application

[14] The first and second applicants (referred to as the 'commissioning parents') are two males who are married to each other and who F approached the court to confirm a surrogacy motherhood agreement in terms of the Act. The third applicant is the surrogate mother and the fourth applicant is her life partner.

[15] The commissioning parents are a Dutch and a Danish citizen respectively, both of whom are domiciled in South Africa and intend to stay here permanently. They have been in a relationship for eight years G and entered into marriage in South Africa in September 2010.

[16] The applicants do not have children of their own and both being male persons are incapable of having children that are genetically related to them except via the process of surrogacy.

[17] They had on a previous occasion entered into a surrogacy agreement H which was confirmed by this court but was not implemented as the surrogate mother became ill during the process and had to withdraw.

[18] The commissioning parents were introduced to the potential surrogate mother by an agency known as Baby-2-Mom. They confirmed that no funds with regard to the introduction of the surrogate mother I had been or would be paid in contravention of the Act.

[19] They allege that they are economically and emotionally stable enough to proceed with the surrogacy agreement and attach a comprehensive report from a clinical psychologist, Ms Mandy Rodrigues, to confirm the latter. J

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A [20] They proceeded to give information about their circumstances, including their employment, financial circumstances, and assets and also declared that they do not have any criminal records. From the information provided it does appear that they possess the financial means to provide for a child now and into the future, that they live within a B supportive social structure and that they are motivated by a 'deep seated desire to become parents'. They also set out to persuade the court that the child to be born will have appropriate 'maternal influences'. We deal with this aspect later in the judgment.

[21] The surrogate mother who is engaged to the fourth applicant is a C personal assistant with two children of her own, who are presently 14 and 3 years old. These are children born from a previous marriage and the older child lives with his father. The clinical psychologist who interviewed the commissioning parents also interviewed her and stated that she is suitable to act as a surrogate mother. It is, however, obvious from the aforesaid report that the intended surrogate mother had a difficult D childhood and may not be as privileged as the...