In order for a surrogacy agreement to be valid it must be made an order of court. This is done by means of an Ex parte application to the High Court. This means that there are no opposing/responding parties. Due to the sensitivity of the matter the parties’ names are not made public. A surrogacy agreement is not an open ended agreement; the artificial fertilisation must be carried out within 18 months of the court confirming the surrogate motherhood agreement.

The result of a surrogate motherhood agreement is that the child born in terms of the agreement is deemed to be the child born of the commissioning parents from the moment of the birth of the child. The commissioning parents will have full parental rights and responsibilities in respect of the child. The commissioning parents will be registered as the parents of the child on the birth certificate. There will be no adoption procedures required. The surrogate mother will have no rights and responsibilities in respect of the child, this includes no right to contact and the child will have no claim for maintenance from the surrogate mother or relatives of the surrogate mother.

The surrogate mother may not receive payment in terms of the agreement. Section 301 of the Children’s Act 38 of 2005 permits the commissioning parent/s to pay for costs directly related to the artificial insemination, pregnancy, birth and confirmation of the motherhood agreement; and professional medical and legal expenses. This means that the surrogate mother cannot earn an income or receive payments for being a surrogate mother.

Recently the Gauteng Division of the High Court in Pretoria heard an application to have two surrogate motherhood agreements confirmed by the court. This case was Ex parte HP and others 2017 (4) SA 528 (GP). The parties to both of these agreements had used the services of a ‘surrogacy coordinator’ and the surrogacy coordinator was to receive payment for her services. The court was required to consider whether remuneration for these services was prohibited in terms of Section 301 of the Children’s Act. The surrogacy coordinator’s justification was that she had the right to practice a profession of her choosing and, as she had been a surrogate mother six times, she was equipped to guide surrogate mothers through the process.

The court held that the intension of Section 301 was to prevent commercial surrogacy, as this is in the public interest and therefore a justifiable limitation to the surrogacy coordinator’s right to practice her chosen profession. Commercial surrogacy would lead to the abuse of vulnerable people, which is what Section 301 was enacted to prevent.

The court then considered the extent to which the surrogacy agreements and the facilitator agreements were connected as well as the vulnerability of the surrogate mothers. The court concluded that in light of the surrogate mothers not being vulnerable women and the applicants’ desire to have children, the surrogate motherhood agreements were confirmed despite the unlawfulness of the facilitator agreements.
The facilitator agreements were declared unlawful and unenforceable.

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