HPP and Others; Ex Parte DME and Others (45037/2016), Ex parte [2017] ZAGPPHC 70; [2017] 2 All SA 171 (GP); 2017 (4) SA 528 (GP) (9 February 2017)

HPP and Others; Ex Parte DME and Others (45037/2016), Ex parte [2017] ZAGPPHC 70; [2017] 2 All SA 171 (GP); 2017 (4) SA 528 (GP) (9 February 2017)

The court found that the surrogacy facilitation agreements entered into between the applicants and Ms Strydom contravened section 301 of the Children's Act, as her services did not fall within the lawful exceptions for compensation. The payments made for facilitation services were not directly related to artificial fertilisation, pregnancy, birth, or confirmation of the surrogate motherhood agreement, nor were they bona fide professional legal or medical expenses. The limitation on Ms Strydom's right to receive payment for such services was justified in terms of section 36 of the Constitution, as it served the public interest by preventing commercial surrogacy and protecting vulnerable...

Citation
[2017] ZAGPPHC 70
Parties
Applicant: HPP; Applicant: JTP; Applicant: SEW; Applicant: WJW; Applicant: DME; Applicant: CDE; Applicant: AMVH; Applicant: RS; Respondent: Ms Lee-Ann Strydom
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 February 2017
Case Number
45037/2016
Procedural Posture
Ex Parte Application / Application for Confirmation of Surrogate Motherhood Agreements
Outcome
Surrogacy facilitation agreements declared unlawful and unenforceable; surrogate motherhood agreements confirmed.
Judges
Tolmay
Legal Topics
Surrogate Motherhood Agreements, Commercial Surrogacy, Children's Act, Unlawful Contracts, Constitutional Rights Limitation
Family and Children Civil Procedure Surrogate Motherhood Agreements Commercial Surrogacy Children's Act Unlawful Contracts Constitutional Rights Limitation

Case Brief

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Parties

HPP

Applicant

JTP

Applicant

SEW

Applicant

WJW

Applicant

DME

Applicant

CDE

Applicant

AMVH

Applicant

RS

Applicant

Ms Lee-Ann Strydom

Respondent

Procedural Posture

Ex Parte Application / Application for Confirmation of Surrogate Motherhood Agreements

Legal Issues

  1. 1 Whether surrogacy facilitation agreements constitute a transgression of section 301 of the Children's Act.
  2. 2 Whether the court may confirm surrogate motherhood agreements if the agreements with Ms Strydom are found unlawful.
  3. 3 Whether payments made to surrogacy facilitators fall within the lawful exceptions under section 301.

Ratio Decidendi

The court found that the surrogacy facilitation agreements entered into between the applicants and Ms Strydom contravened section 301 of the Children's Act, as her services did not fall within the lawful exceptions for compensation. The payments made for facilitation services were not directly related to artificial fertilisation, pregnancy, birth, or confirmation of the surrogate motherhood agreement, nor were they bona fide professional legal or medical expenses. The limitation on Ms Strydom's right to receive payment for such services was justified in terms of section 36 of the Constitution, as it served the public interest by preventing commercial surrogacy and protecting vulnerable...

Court Disposition

Surrogacy facilitation agreements declared unlawful and unenforceable; surrogate motherhood agreements confirmed.

Orders

  • The surrogacy facilitation agreement entered into between the applicants and Ms Strydom is declared unlawful and unenforceable in both applications.
  • The surrogate motherhood agreements entered into between the parties are confirmed.