Ex Parte WH 2011 - This is a case summary for family law that has the facts, the issue, the principles, PDF

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EX PARTE WH 2011 (6) SA 514 (GNP)PRECEDENT SET: HOMOSEXUAL COUPLES ARE ALLOWED TO CONCLUDE SURROGACY AGREEMENTS.. ANY PAYMENT TO ANY PERSON OTHER THAN THOSE SET OUT IN S 301 OF THE ACT IS PROHIBITED.FACTS OF THE CASE: The first and second applicants (referred to as the “commissioning parents”) are ...

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EX PARTE WH 2011 (6) SA 514 (GNP) P R EC E D E N T S E T : H O M O S E XUA L C O U P L ES A R E A L LO W E D TO C O N C LU D E S U R RO G A C Y AG R E E M E N T S . . A N Y PAY M E N T TO A N Y P E R S O N OT H E R T H A N T H O S E S E T O U T I N S 3 0 1 O F T H E AC T I S P RO H I B I T E D.

FACTS OF THE CASE: 

 

The first and second applicants (referred to as the “commissioning parents”) are two males who are married to each other and who approach the Court to confirm a surrogacy motherhood agreement in terms of the Act. The third applicant is the surrogate mother and the fourth applicant is her life partner [para 14]. The applicants do not have children of their own and both being male persons are incapable of having children that are genetically related to them except via the process of surrogacy [para 16]. Judge: Tolmay J and Kollapen J

LEGAL ISSUE: Application in terms of section 295 of the Children’s Act 38 of 2006 for the confirmation of a surrogacy agreement.

APPLICATION/ RATIO: South Africa recognizes heterosexual as well as same sex civil marriages and in light of the fact that no discrimination on grounds of sexual orientation is allowed. Therefore same sex couples can apply for surrogacy agreements To avoid commercial surrogacy (either directly or indirectly) the Court should in all instances where an agency is involved , be fully appraised of all the facts and circumstances relating to the modus operandi of the agency , the relationship between the agency and the commissioning parents as well as the agency and the surrogate mother [para 30] Any payment to any person other than those set out in section 301 of the Act is prohibited. This would include any facilitation fee to any person who introduced the surrogate mother to the commissioning parents or any compensation of any nature other than those that the Act makes provision for and which can only include the expenses of the surrogate mother as set out in the Act, legal and medical expenses. Therefore you can’t pay an agency that finds you a surrogate. [para 65] The commissioning parent must be suitable according to s295(b)(ii). Personal preferences should not affect a judge’s decision on the suitability of a person.

CONCLUSION: 

The formal requirements found in Section 292 of the Act have been met and we are satisfied that both the commissioning parents as well as the surrogate mother are suitable persons as contemplated in the Act therefore the surrogate motherhood agreement annexure “FA4” is

confirmed [para 80]. The provision of s297(1) of the Children’s Act of 2005 will apply to the agreement for all purposes [para 80]...