Ex parte MS 2014 JDR 0102 Case No 48856/2010 (GNP) : Surrogate motherhood agreements, condonation of non-compliance with confirmation requirements and the best interests of the child

Abstract

The confirmation of surrogate motherhood agreements has become a focus point of attention since the reporting of the judgment in Ex parte WH (2011 6 SA 514 (GNP) (for which see, Carnelley "Ex parte WH 2011 6 SA 514 (GNP)" 2012 De Jure 179; Pillay & Zaal "Surrogate motherhood confirmation hearings: The advent of a fundamentally flawed process" 2013 THRHR 475; Bonthuys & Broeders "Guidelines for the approval of surrogate motherhood agreements: Ex parte WH" 2013 THRHR 485; Louw "Surrogacy in South Africa: Should we reconsider the current approach? 2013 THRHR 564; Nicholson C "Surrogate motherhood agreements and their confirmation: A new challenge for practitioners?" 2013 De Jure 510). There seems to be general consensus that the judgment has not provided the anticipated, much needed guidance. The discrepancy between what the court preached and what it practiced (as succinctly phrased by Pillay & Zaal 2013 THRHR 483) as far as the enforcement of the surrogacy provisions is concerned, forms a central theme throughout the published comments which, without exception, have been negative to varying degrees. The failure of the court to undertake a rigorous investigation into the court documents and the facts that underlie them, coupled with the inadequacy of the statutory provisions and the evident difficulty implementing them, have elicited a call for legislative amendment. However, none of the authors mentioned, anticipated the possibility of the factual scenario with which the court was faced in MS, the case under discussion. The lack of foresight is easy to explain. Since it was generally accepted that the Children's Act requires a surrogate motherhood agreement to be confirmed before the artificial fertilisation of the surrogate mother, the possibility of the court considering a request for confirmation after the surrogate had been fertilised, was simply never entertained.