Late last month, a court in South Africa approved a surrogacy agreement. This is not uncommon in itself since South Africa has a statute permitting such agreements. This decision is important because it resulted in a published opinion that gives some insight into the way courts may approach these agreements.
The agreement involved a married same-sex couple who had entered into a surrogacy agreement with an undisclosed egg donor to whom they had been introduced by an online egg-donation agency. The court noted that “the intended surrogate mother had a difficult childhood and may not be as privileged as the commissioning parents.”
In assessing the legal validity of the agreement, the court said South Africa recognizes “the right to have a child through a surrogacy arrangement,” and this is consistent with constitutional protection of “the rights of gays and lesbians to form personal relationships of their choice and to marry and to participate in family life.” The court pointed to a significant shift in the understanding of “family” in South Africa, quoting for instance from an earlier court decision: “These days mothering is also part of a man’s being. The concept of mothering is indicative of a function rather than a ‘persona’ and this function is not necessarily situated in the biological mother. It includes the sensitive attachment which flows from the attention devoted from day to day [attention] to the child’s needs of love, physical care, nutrition, comfort, peace, security, encouragement and support. . . . Today the man has the freedom to reveal and live out the mothering feeling.”
The court expressed its understanding of the judicial role in surrogacy arrangement as to “ensure that both the formal and the substantive requirements of the [Surrogacy] Act are complied with.” The only difficulty, to the court, was the question of whether the surrogate had been compensated since South African law does not allow for compensation. The court explains that the couple paid 20,400R per year for health insurance, 6,000R per year for life insurance and 20,000R for “Surrogate’s various expenditures.” The court said it would be better to have more specificity in the accounting of expenses, but it did not think this constituted payment that would invalidate the agreement. The court explained that since these kinds of arrangements come to court with all of the parties in agreement (as opposed to an adversarial proceeding), the court has to rely on the good faith of the parties to the agreement.
Despite these concerns with the unspecified expenses, the court concluded the legal requirements for a valid surrogacy agreement had been complied with and validated this agreement.