In re Confirmation of Three Surrogate Motherhood Agreements

• Jurisdiction: South Africa
• Judge: Victor J and Wepener J
• Judgment Date: 16 August 2010
• Citation: 2011 (6) SA 22 (GSJ)
• Docket Number: 2011/53
• Hearing Date: 01 March 2011
• Counsel: D Thinane (attorney) for the applicants.
• Court: South Gauteng High Court, Johannesburg

In re Confirmation of Three Surrogate Motherhood Agreements
2011 (6) SA 22 (GSJ)

2011 (6) SA p22

Citation	2011 (6) SA 22 (GSJ)
Case No	2011/53
Court	South Gauteng High Court, Johannesburg
Judge	Victor J and Wepener J
Heard	March 1, 2011
Judgment	August 16, 2010
Counsel	D Thinane (attorney) for the applicants.

Flynote : Sleutelwoorde F

Minor — Surrogate mother — Surrogate motherhood agreement — Confirmation by court — Requirements — Court upper guardian of all children — Best interests of child paramount — Court to be informed in detail who commissioning parents are, of their financial position, what support systems they have in place, what their living conditions are and how the child will be G taken care of — Sufficient information to be placed before court for it to decide whether the applicants are 'in all respects suitable persons to accept the parenthood of the child that is to be conceived' — Children's Act 38 of 2005, ss 292 – 303.

Headnote : Kopnota

When the court is presented with applications to confirm surrogate motherhood H agreements in terms of the Children's Act 38 of 2005, the court, as upper guardian of all children, is duty-bound to ensure that the interests of the child, once born, are best served by the contents of the agreement. The children's interests are paramount. (Paragraph [16] at 29B.)

The applicants must supply proper and full details regarding themselves for the court to determine whether the commissioning parents are indeed fit and I proper to be entrusted with full parental responsibilities. (Paragraph [24] at 30E – F.)

The court would need to know in detail who the commissioning parents are, what their financial position is, what support systems, if any, they have in place, what their living conditions are, and how the child will be taken care of. A good practice is also found regarding adoptions, where expert J assessment reports from social workers are required, and in practice a police

2011 (6) SA p23

clearance is obtained in order to demonstrate the suitability of the A adoptive parents. This can be applied to the commissioning parents with very good results. An expert report can also address the suitability of the surrogate mother. (Paragraph [17] at 29C – D.)

Sufficient information needs to be placed before the court for it to decide whether the applicants are 'in all respects suitable persons to accept the B parenthood of the child that is to be conceived' as required by s 295(b)(ii) of the Act. (Paragraphs [18] – [21] at 29D – 30B.)

Complete and full compliance is required with all the provisions of the Act, the requirements raised in this judgment and Practice Directive 5 of 2011 (see para [27]). (Paragraphs [26] – [28] at 30H – 31E.)

Cases Considered

Annotations: C

Reported cases

Vista University, Bloemfontein Campus v Student Representative Council, Vista University, and Others 1998 (4) SA 102 (O): dictum at 104E – G applied.

Statutes Considered

Statutes D

The Children's Act 38 of 2005, ss 292 – 303: see Juta's Statutes of South Africa 2010/11 vol 7 at 4-148 to 4-150.

Case Information

Three applications for confirmation of surrogate motherhood agreements. E

D Thinane (attorney) for the applicants.

Judgment

Wepener J (Victor J concurring):

[1] On 7 January 2011 three applications to confirm surrogate motherhood agreements in terms of the Children's Act 38 of 2005 (the Act) F were brought to the urgent court of this division. 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 states that it relies on the founding affidavit of one BCB, and annexures thereto. BCB made no affidavit in the second and third matters, as he has no interest in them. These two applications G consequently incorrectly refer to annexures which are not attached to them. All three applications seek an order that 'the provisions of s 297(91) of the Children's Act 38 of 2005 will apply to the agreement . . .'. There is no such section. All three applications seek an order that the 'Addendum of the Surrogate Motherhood Agreement . . .' be confirmed by the court. There are no addenda attached to the surrogate H motherhood agreements.

[2] In the first application the applicant states that he has no children. Yet, in his application he alleges that he is desirous 'to have further children' of his own, and wishes to 'conceive my own further biological child'. The contradiction is not explained. I

[3] Each of the applicants alleges that he or she resides and is domiciled at an address within the courts' area of jurisdiction. The one applicant in the second application, however, states that he is a non-South African citizen, 'although domiciled and residing' at an address within the court's jurisdiction. There are no particulars to support the conclusion J

2011 (6) SA p24

Wepener J (Victor J concurring)

A that a particular applicant is indeed domiciled within the Republic. The primary facts in support thereof are absent.

[4] In the second application the surrogate mother is identified in the application by a certain name. The supporting affidavit of the surrogate B mother is by a person with a different surname, and this is not explained.

[5] Applications such as these under consideration have serious implications for all the applicants concerned, and also for the children to be born. Practitioners who copy previous applications should take care to draft papers in a proper manner, and not to just shoddily copy and paste C other applications.

[6] On 7 January 2011 Mr Thinane appeared to move the three applications in the urgent court, and I ordered that all three applications were to be postponed to 1 March 2011, as there was no case for urgency made out in any of the matters, despite a prayer that the forms and D service be dispensed with. The court also wanted to consider the applications properly. It was indicated to Mr Thinane that he could possibly expect further enquiries from the presiding judge, prior to the matters being heard on 1 March 2011, as the court files would remain with the judge.

E [7] Despite this, the attorney for the applicants again enrolled all three matters on 19 January 2011 before Acting Judge Kollapen. This time the matters had different case numbers, and new court files had been opened when they were so placed before the presiding judge. There was again a prayer that the court should dispense with the forms and service F provided for in rule 6(12)(b), and again there was nothing in the affidavits dealing with urgency. Kollapen AJ was not prepared to hear the matters in open court, and indicated to Mr Thinane that there was no urgency in the matters. The matters were removed from the roll 'by agreement'.

G [8] The attorneys for the applicants again enrolled all three matters during the week before term commenced. The matters appeared on the motion court roll before Justice Meyer. Meyer J advised Mr Thinane that he was aware that three similar matters were postponed, and were to be heard on 1 March 2011, and he suggested that they be postponed to that H date, to the court hearing the three similar matters. Mr Thinane did not disclose to Meyer J that they were the very same three matters that had been postponed to 1 March 2011, and had again been enrolled with different case numbers. Mr Thinane elected to remove the matters from the roll.

I [9] On 31 January 2011 the matters were enrolled for a fourth time by the attorneys, and handed to Madam Justice Nicholls in chambers by Mr Thinane stating that a person in the registrar's office directed him to place the matters before her. On Wednesday 2 February 2011 Nicholls J granted the orders prayed for at about 09h30. The facts became known at about 10h00, and Mr Thinane was called back to the chambers of J Nicholls J. When confronted with his conduct, Mr Thinane could give

2011 (6) SA p25

Wepener J (Victor J concurring)

no explanation, and only stated that he agreed that the matters were to A be heard on 1 March...