The Validity of Surrogacy Facilitation Agreements: [An Analysis of Ex Parte HPP; Ex Parte DME [2017] 2 All SA 171 (GP)]

• Jurisdiction: South Africa
• Author: Skosana, T.
• Date: 26 January 2021
• Citation: (2020) 31 Stell LR 548
• Pages: 548-558
• Published date: 26 January 2021

548

THE VALIDITY OF SURROGACY FACILITATION

AGREEMENTS [AN ANALYSIS OF EX PARTE

HPP; EX PARTE DME [2017] 2 ALL SA 171 (GP)]

Themba Skosana*

LLB LLM (UNISA)

Senior Lecturer, Department of Private Law, University of South Africa

Abstract

Commercial surrogacy i s prohibited in South Africa . In Ex parte HPP,

the court dealt with a surrogate facilitation agreement which wa s tainted

by an illegal surrogate motherhood ag reement as a result of payments of

surrogate facilitation fees. T he court applied contract law principle s to justify

conrmation of the two surrogate motherhood agreements and to avoid the

penal provisions of the Children’s Act applicable to such illegality. This art icle

argues that this is the incorrect approach and that the court must focu s on

the provisions of the Act that, e xcept for specic situa tions, forbid payments

in connection with the con rmation or execution of surrogate agree ments.

Keyword s: altruistic su rrogacy, commercial surrogac y, surrogacy

facilitation agreement

1 Background

It is trite that the proce ss of surrogacy is sensitive, costly, and technica l

in nature. The refore, some form of assistance to the sur rogate or the

commissioning pare nt(s) may be important during the “su rrogacy process”.1

Due to the natur e of the surrogacy process, the su rrogate or the commissioning

parent(s) may enter into different prior agree ments with a medical doctor, a

lawyer or an agency, before they conclude a surrogate motherhoo d agreement.2

A “surrogacy facilit ation agreement” is one exa mple of such an agreement

* The author would l ike to than k the UNISA Coll ege Research and I nnovation Committee for f unding

awarded to pres ent a paper on which thi s article is based at t he Fifth Academic In ternational Co nference

on Law, Economics and Fi nance (AICLEF) held at Cambridge , United Kingdom, from 3-5 Dec ember

2018

1 The term “su rrogacy proc ess” means the pr ocess of surrog acy from the momen t when the commis sioning

parents ant icipate surrog acy as an option of conce iving a child, inclu ding the stage of f inding a surr ogate

mother, the sta ge relating to the confir mation of the surrogate m otherhood agreement, a nd finally the

stage when the su rrogate mother either decid es to termi nate the sur rogate motherhood agreem ent or

termin ate the pregnancy, or ha nds over the child to th e commissioning p arents

2 Section 1 of the Ch ildren’s Act defines “su rrogate motherho od agreement” a s

“an agreeme nt between a surroga te mother and a commi ssioning parent in wh ich it is agreed that the

surrogat e mother will be ar tificiall y fertilised for t he purpose of be aring a child for t he commissioni ng

parent and in w hich the surrogate mo ther undertake s to hand over such a child to th e commissioning

parent upon its b irth, or with in a reasonable ti me thereaft er, with the intent ion that the child co ncerned

becomes the leg itimate child of the c ommissioning pa rent”

(2020) 31 Stell LR 548

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