Court sets new guidelines for surrogacy arrangements


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  • The existing children of a woman who agrees to act as a surrogate must be psychologically assessed before a deal can be sanctioned, the High Court has ruled.
  • This is part of the new guidelines to follow in surrogacy agreements that are submitted to the court for approval.
  • Current guidelines state that a surrogate mother must have a documented history of at least one pregnancy, a “viable delivery” and a living child.

The existing children of a woman who agrees to a surrogate pregnancy must be psychologically evaluated before an agreement can be sanctioned. This is according to a recent ruling by Judge Brenda Neukircher of the High Court in Pretoria.

In her ruling, Judge Neukircher established further guidelines to follow in surrogacy agreements that are subject to court approval. Some of the guidelines are based on the constitutional principle of “the best interests of the child”.

Judge Neukircher ruled that “if it were to be found that surrogacy may have an adverse effect on their psychological well-being, that would be a factor that a court could weigh in considering whether the agreement must be confirmed. or not.”

Outlining the history of surrogacy laws in South Africa, Neukircher said one provision was that a surrogate must have a documented history of at least one pregnancy, a “viable delivery” and a living child. .

Neukircher noted the importance for courts to consider the impact a surrogate pregnancy would have on the woman’s existing child or children. “How does a surrogate pregnancy affect the surrogate’s own child(ren)?” Bearing in mind that they watch her pregnancy for nine months, know that she is carrying a child and see her go to the hospital to give birth, then come home without a baby in her arms. Is it important that the interests of these children be protected and, if so, how does a court do this? “, she said.

The applicants in the case before Neukircher were financially stable. They already had a ten-month-old baby born through a previous surrogacy deal with the same surrogate. The surrogate had previously been a surrogate for other couples and once gave birth to twins.

Neukircher said the couple still had a frozen egg and now wanted another child with the surrogate. “In every way they function as a stable family unit and I am confident they are capable of supporting a second child financially, emotionally, physically and educationally. Any child born from this surrogacy will have their best interests considered in all aspects of the (Children’s Act),” the judge said.

Addressing the surrogate, Judge Neukircher said she was married and had two children of her own aged ten and seven. “At the time of the first surrogacy, they were six and three. Each time their mother carries a child as a surrogate mother, they are confronted with her pregnancy which does not end with a child returning home to join their family. My concern was, how healthy is it, psychologically, for children to go through this process? »

Neukircher said she ordered expert reports compiled on the surrogate’s physical fitness to have another child and the effect, if any, of her surrogate pregnancies on her own children.

She said the report revealed that the surrogate’s two children did not want her to have any more children of her own. “Both were proud of her helping others build families and it seems both have adjusted to her acting as a surrogate…they don’t see [the babies] as part of their own family…they don’t want their mother to bring the baby home”.

She said the “invaluable report” underlined the importance that children of surrogate mothers need to be prepared for pregnancy “which goes a long way in alleviating any possible anxiety”.

The judge said lawyers for the commissioning parents and the surrogate mother and her husband agreed that by not requiring such expert reports, the legislature had overlooked the principle of “best interests” when they were existing children. She said the law establishes compliance factors for surrogacy agreements, including that a court must consider the personal and family circumstances of everyone involved.

Going forward, Neukircher said, this must include an assessment of children already born. In this case, she granted an order confirming the agreement.

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