MCM and Another (28084/22), Ex parte [2022] ZAGPPHC 712 (26 September 2022)

MCM and Another (28084/22), Ex parte [2022] ZAGPPHC 712 (26 September 2022)

The court held that the statutory framework governing assisted reproduction, specifically the Children's Act and the Regulations Relating to Artificial Fertilisation of Persons, requires that in vitro fertilisation for surrogacy purposes may only be effected once a surrogate motherhood agreement is confirmed by the court and a specific recipient (the surrogate mother) is identified. The phrase 'specific recipient' in regulation 10(2)(a) must be interpreted narrowly, meaning the recipient must be named and identifiable at the time of embryo creation. The court cannot authorise IVF and cryopreservation of embryos for future surrogacy in the absence of an identified surrogate mother, nor can...

Citation
[2022] ZAGPPHC 712
Parties
Applicant: MCM; Applicant: D
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 September 2022
Case Number
28084/22
Procedural Posture
Ex Parte Application / Application for Declaratory Relief Prior to Surrogacy Agreement Confirmation
Outcome
Application dismissed.
Judges
Van der Schyff
Legal Topics
Surrogacy Motherhood Agreement, Artificial Fertilisation, Regulations Relating to Artificial Fertilisation, Declaratory Relief, Children Act, National Health Act
Family and Children Civil Procedure Surrogacy Motherhood Agreement Artificial Fertilisation Regulations Relating to Artificial Fertilisation Declaratory Relief Children Act National Health Act

Case Brief

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Parties

MCM

Applicant

D

Applicant

Procedural Posture

Ex Parte Application / Application for Declaratory Relief Prior to Surrogacy Agreement Confirmation

Legal Issues

  1. 1 Whether the creation of embryos through IVF for future surrogacy is lawful without a court-confirmed surrogate motherhood agreement.
  2. 2 Whether regulation 10(2)(a) of the Regulations Relating to Artificial Fertilisation of Persons permits IVF prior to identification of a specific surrogate recipient.
  3. 3 Whether the court can grant declaratory relief authorising IVF and cryopreservation of embryos before a surrogate is identified.

Ratio Decidendi

The court held that the statutory framework governing assisted reproduction, specifically the Children's Act and the Regulations Relating to Artificial Fertilisation of Persons, requires that in vitro fertilisation for surrogacy purposes may only be effected once a surrogate motherhood agreement is confirmed by the court and a specific recipient (the surrogate mother) is identified. The phrase 'specific recipient' in regulation 10(2)(a) must be interpreted narrowly, meaning the recipient must be named and identifiable at the time of embryo creation. The court cannot authorise IVF and cryopreservation of embryos for future surrogacy in the absence of an identified surrogate mother, nor can...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.