The laws of surrogacy in South Africa have been regulated by the Children`s Act 38 of 2005 in Chapter 19, before this Chapter came into effect in 2010 surrogacy was an agreement between parties. This agreement was known as a ‘Surrogate Motherhood Agreement.’ When the child was born the parties would then follow steps which regulate adoption, in a Children’s court that would have jurisdiction.
The reason it previously happened this way was because the surrogate mother was assumed to be the biological mother of the child therefore acquiring full parental rights and responsibilities, if she was married her husband would also acquire full rights and responsibilities.
According to the Children`s Act the position is that these agreements are no longer valid unless a list of requirements is met, the requirements are as follows:
- The agreement is in writing and signed by all parties involved.
- The agreement was entered into in the Republic of SA.
- One of the commissioning parents, or if single the parent they should be domiciled or ordinarily resident in RSA when they entered into the agreement.
- The surrogate Mother and her husband/ partner are ordinarily resident or domiciled in RSA when they enter into the agreement.
- The agreement must be confirmed by the High Court in the jurisdiction where the commissioning parents live.
In the recent case of Ex parte DW 2022 ZAKPHC 11, the court looked into section 294 which deals with the origin of the gametes used in the surrogacy agreement. The Act says that no agreement is valid unless the gametes of the commissioning parents are used, if one cannot for medical or other reasons then one of the two must contribute their gamete. If the agreement involves a single person, then that person must contribute their gamete.
The applicant in this case approached the court in a bid to allow him to obtain gametes from a sperm donor as he could not contribute gametes of his own as he is regarded as infertile. He also approached the Court to confirm his surrogate motherhood agreement although the provisions of section 294 had not been met and could not be met.
The court dismissed the application. The impact of the decision taken by court is that couples that are both infertile will not be able to use surrogacy as an alternative way to have children or build their families. The only option the court has left for people who find themselves in this situation is adoption in terms of the Children’s Act.