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 such;’ and
‘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 not.