Certainty about surrogacy

Mills, Lize (2010-09)

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

Article

Summary: With the recent coming into operation of Chapter 19 of the Children’s Act 38 of 2005 on 1 April 2010, the previous legal position relating to surrogacy has been completely altered. Prior to the commencement of these provisions of the Act, commissioning persons in a surrogacy relationship had to adopt the artificially conceived child in terms of the Child Care Act 74 of 1983. In June 2009, at a time when the Child Care Act was still in force, the North Gauteng High Court found, inter alia, that the adoption procedure may be ignored and that the commissioning parents will automatically be regarded as the child’s parents. The Court provided no reasons for its decision. Since the most important question in a legal, moral, religious and philosophical issue such as surrogacy is to determine the parental responsibilities and rights of the parties involved, it was of the utmost importance that the previous unsatisfactory and confusing position be clarified. This note aims to explain the background to the Court’s order and to evaluate the decision in view of the legal position applicable at the time. It also discusses the possible implications of this order as well as the certainty which the amendments to the law, in terms of Chapter 19 of the Children’s Act, will hopefully bring.

Introduction: 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.

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