“Acting as a surrogate is a selfless and generous act towards parents who cannot conceive their own child. But what about existing children of a surrogate mother and the impact surrogacy may have on them? Should this not also be considered?”

Surrogate motherhood agreements are thoroughly regulated by legislation in South Africa, and for good reason, as there are several very complicated and intricate issues involved when these agreements are made and executed.

Of relevance are the specific provisions contained in Section 295 of the Children’s Act 38 of 2005 that determines that for a court to confirm a surrogacy agreement, the surrogate mother must amongst other factors have a documented history of at least one pregnancy and viable delivery, and also have a living child of her own. The court must also be satisfied that confirmation of the agreement is justified in terms of the personal circumstances and family situations of all the parties concerned.  

In the recent judgment of Ex Parte JCR and Others the Court ruled that the existing children of a women who agrees to act as a surrogate mother, must be psychologically assessed to determine what the impact of the surrogate pregnancy would have on them.

The prospective surrogate mother in this matter was married and had two children of her own, aged 10 and 7 years old. This was not the first time that she would act as a surrogate mother, the first time being when the children were 6 and 3 years old. The following was stated in the judgment: “Each time the third applicant carries a child as a surrogate, they are confronted by their mother’s pregnancy which does not end in a child being brought home from the hospital to join their own family. My concern was therefore: how healthy, psychologically, is it for children of surrogates to go through this process…”  

The learned Judge held that every surrogacy application affects not only the rights and interests of the unborn child but also those of the children that are already part of the family unit of the surrogate and (sometimes) the commissioning parents. In arriving at its decision, the Court considered the interests of the child and how a surrogate pregnancy affected the surrogate mother’s own child/children, considering that they had to watch her pregnancy for nine months, knowing she is carrying a child, seeing her go to hospital to deliver the baby and then coming back home without a baby in her arms.

From this judgment, a welcome new requirement has now been laid down for surrogacy applications, namely that where there are children born to the surrogate (the surrogates’ own children) it is in the best interests of those child(ren) for purposes of confirmation of the agreement that they be psychologically assessed. If it is found that the surrogacy may have a harmful effect on their psychological well-being, this, would be a factor that a court would be able to weigh up in the consideration of whether the agreement should be confirmed or not.  

In this case the assessment found that both children where proud of the fact that their mother assisted other couples in becoming families and that they did not ask to see the babies as they become older, nor do they see them as being part of their own family. Accordingly, the court confirmed the surrogacy agreement.

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