Certainty about surrogacy
CITATION: Mills, L. 2010. Certainty about surrogacy. Stellenbosch Law Review = Stellenbosch Regstydskrif 21(3):429-437.
The original publication is available at https://journals.co.za/content/journal/ju_slr
Prior to the coming into operation of Chapter 19 of the Children's Act 38 of 2005 ("the Children's Act") on 1 April 2010, no legislation existed which expressly addressed or regulated the issue of surrogacy in South Africa. Although it was never explicitly prohibited, the basic philosophy apparently used to approach surrogacy was to test "the various issues against the prevailing boni mores". It appears that altruistic surrogacy was allowed but commercial surrogacy was regarded as contra bonos mores since surrogate motherhood was not considered to be an "ideal way ... to create a family", and the exchange of money for the adoption of a child was, and still is, prohibited. The reality was that infertile couples and surrogate mothers entered into both altruistic and commercial surrogacy agreements on a regular basis, mainly due to the many advantages surrogacy was seen to hold over the adoption procedure. The legal relationship between the parties involved remained one of uncertainty and, subsequent to an order by the North Gauteng High Court in 2009, confusion. This note aims to briefly explain the background to this order and to evaluate it in view of the legal position applicable at the time. It will furthermore discuss the possible implications of this order as well as the amendments to the law which came into effect with the commencement of Chapter 19 of the Children's Act. It is argued that these provisions and the certainty which they provide to the parties involved in a surrogacy relationship are much needed and long overdue.
- Collection K248