Surrogacy and the best interests of the child standard

By Sasha Kadish

Section 295 of the Children’s Act[1] sets out guidelines for a court to consider when confirming a surrogacy agreement. The guidelines[2] all refer to the requirements of the surrogate mother as well as the commissioning parents, save for S295(e), which states that the court must, in general, have regard for the personal circumstances and family situations of all the parties concerned.

In a recent case[3], Judge Neukircher took this requirement a step further and looked at whether surrogacy agreements adhere to the best interests of the child standard as per Section 28(2) of the Constitution[4]. Not only as it relates to the unborn child whom the surrogate would be carrying, but further to the children already born to the parties involved.

The potential surrogate had already been a surrogate four times in the case. Once to the commissioning parents, who now have a 10-month-old child and wish to have another via the same surrogate. The surrogate has two children of her own, who are now aged 7 and 10.

The judge questioned how a surrogate pregnancy affected the surrogate mother’s child/children. They watched her pregnancy for nine months and knew she was carrying a child. They saw her going to the hospital to deliver the baby (and was away from them for a period after giving birth). Then the mother came back home without a baby in her arms. The court must protect the interests of these children.


[1] 38 of 2005

[2] S295 states that a court may not confirm a surrogate motherhood agreement unless-

(a) the commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible;

(b) the commissioning parent or parents –

(i) are in terms of this Act competent to enter into the agreement;

(ii) are in all respects suitable persons to accept the parenthood of the child that is to be conceived; and

(iii) understand and accept the legal consequences of the agreement and this  Act and their rights and obligations in terms thereof;

(c) the surrogate mother

(i) is in terms of this Act competent to enter into the agreement;

(ii) is in all respects a suitable person to act as surrogate mother;

(iii) understands and accepts the legal consequences of the agreement and  this Act and her rights and obligations in terms thereof;

(iv) is not using surrogacy as a source of income;

(v) has entered into the agreement for altruistic reasons and not for commercial purposes;

(vi) has a documented history of at least one pregnancy and viable delivery;

and

(vii) has a living child of her own;

(d) the agreement includes adequate provisions for the contact, care, upbringing  and general welfare of the child that is to be born in a stable home environment, including the child’s position in the event of the death of the commissioning parents or one of them, or their divorce or separation before  the birth of the child; and

(e) in general, having regard to the personal circumstances and family situations  of all the parties concerned, but above all the interests of the child that is to be born, the agreement should be confirmed.

[3] Ex Parte JCR and others

[4]A child’s best interests are of paramount importance in every matter concerning the child”.


How does a court do that?

The judge further questioned the effect that the surrogate pregnancy might have on the children, if any, of the commissioning parent. In most surrogacy cases, if not all, there is an “at arm’s length” between the commissioning parents and the surrogate. Thus, the surrogate’s children do not have the advantage of processing that their mother is pregnant and that a baby will join their family in 9 months. In many cases, these children may suddenly have to contend with this “stranger” that now takes up their parents’ time and attention.

As the upper guardian of all children, Judge Neukircher made this order. In the future, the court should receive the following information to safeguard the interests of the surrogate as well as any existing child(ren) of the commissioning parents and the surrogate:

  1. that a clinical psychologist has consulted with the child(ren) of the commissioning parents to:
  1. prepare the child(ren) for surrogacy and the outcome.
  1. to make any recommendation that is in the interests of the child(ren), including whether they may need further therapy.
  1. report on the effect that any previous surrogacy has had on the children.

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