A Surrogate Motherhood
Agreement has to be confirmed by the Court in order for the child to be born a
child of the contracting parents, in terms of chapter 19 of the Children’s Act
38 of 2005.
The Court is the upper
guardian of children, and therefore has to consider the best interests of the
child, part of which is what the family situation will be into which the child
is being born.
In the recent case of Ex Parte CJD and Others 2018 (3) SA 197
(GP) the facts were as follows: the First and Second Applicants were same sex
males who had been in a relationship for 10 years. The Third and Fourth Applicants
were the prospective surrogate mother and her partner.
Although the First and Second
Applicants had been in a relationship for 10 years they were not living
together. Furthermore, the Second Applicant did not want the public to know his
sexual orientation and that he would be a parent in the same-sex relationship.
Naturally the Court was
concerned about how the living arrangement would affect the child. The Court
was not satisfied as to how they would operate and function as a family unit.
Accordingly the Court
dismissed the Application.
The Court stated that in
future Applications for the confirmation of Surrogate Motherhood Agreements the
Applicants should set out the following in the Founding Affidavit to the
Application in order for the Court not to dismiss the Application:
- ‘If and how the applicants will function as a
family unit and whether they are comfortable with society regarding them as
‘Whether they are living together or not, and
if not, why this state of affairs will not impact on the interests of the child
and them functioning as a family unit.’
By including the
above in the Application the information will assist the Court in reaching a
decision as to whether the Surrogate Motherhood Agreement will be confirmed or