The Ratification of Inadequate Surrogate Motherhood Agreements and the Best Interest of the Child

26 Pages Posted: 17 Jul 2019

See all articles by Mathabo Baase

Mathabo Baase

University of Cape Town (UCT)

Date Written: May 21, 2019

Abstract

South Africa has developed domestic legislation governing all surrogacy matters within the country. These provisions are contained in Chapter 19 of the Children's Act 38 of 2005.

In Ex parte MS; In re: Confirmation of Surrogate Motherhood Agreement 2014 2 All SA 312 (GNP), the commissioning parents did not adhere to the requirement provided by Chapter 19. The parties to the (initially informal) surrogacy agreement authorised the artificial fertilisation of the surrogate mother prior to the confirmation of the surrogate motherhood agreement by the court. In considering the best interest of the resultant child, the High Court decided to ratify the inadequate surrogate motherhood agreement.

This discussion aims to establish whether the court's judgement in Ex parte MS; In re: Confirmation of Surrogate Motherhood Agreement 2014 2 All SA 312 (GNP) was in accordance with the provisions of current legislation and case law. It furthermore aims to answer two primary questions: firstly, whether adjudicators should make use of the best interest of the child when ratifying inadequate surrogate motherhood agreements; and secondly, in what manner the court should go about implementing the best interest of the child when validating inadequate surrogate motherhood agreements.

It is submitted that courts should refrain from applying the best interest of the child as a constitutional right in inadequate surrogacy matters where the child is yet to be born alive, in accordance with the Digesta Texts. Parties to the invalid agreement should rather be instructed to make use of a section 22 parental responsibilities and rights agreement, a section 28 termination agreement, or adoption as provided for by chapter 15 of the Children's Act.


Keywords: surrogate motherhood agreement, best interest of the child, child, confirmation, ratification

Suggested Citation

Baase, Mathabo, The Ratification of Inadequate Surrogate Motherhood Agreements and the Best Interest of the Child (May 21, 2019). Potchefstroom Electronic Law Journal, Vol. 22, 2019, Available at SSRN: https://ssrn.com/abstract=3421320

Mathabo Baase (Contact Author)

University of Cape Town (UCT) ( email )

Private Bag X3
Rondebosch, Western Cape 7701
South Africa

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
9
Abstract Views
138
PlumX Metrics