Three Surrogacy Applications and Others (8749/22;9353/22;34190/22), Ex parte [2022] ZAGPPHC 848 (25 October 2022)

Three Surrogacy Applications and Others (8749/22;9353/22;34190/22), Ex parte [2022] ZAGPPHC 848 (25 October 2022)

The court held that it is not a general requirement in surrogacy applications for existing children of commissioning parents or surrogate mothers to be assessed by a clinical psychologist. Such a blanket rule would be inconsistent with the best interests of the child principle, which requires individualised, fact-based inquiry. The Children's Act and established jurisprudence provide that the emotional availability of the surrogate mother is the relevant criterion, and expert evidence confirms that mandatory psychological assessments may be harmful and are not supported by empirical research. Courts retain discretion to order assessments of children if the circumstances of a particular...

Citation
[2022] ZAGPPHC 848
Parties
Applicant: Three Surrogacy Applications; Applicant: Donrich Thaldar; Applicant: Brigitte Clark; Applicant: Willene Holness; Applicant: Sheetal Soni; Applicant: Bonginkosi Shozi; Applicant: Ntokozo Mnyandu; Applicant: Aliki Edgcumbe; Applicant: Melodie Labuschaigne; Applicant: Magda Slabbert
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 October 2022
Case Number
8749/22;9353/22;34190/22
Procedural Posture
Ex Parte Application / Determination of Discrete Legal Question Prior to Consideration of Surrogacy Applications
Outcome
Declaratory order granted: No general requirement for psychological assessment of children in surrogacy applications; courts retain discretion to order such assessments if warranted.
Judges
AP Ledwaba, E van der Schyff, I de Vos
Legal Topics
Surrogacy Agreements, Children's Act Section 295, Psychological Assessment of Children, Best Interests of Child, Court Discretion in Surrogacy, Emotional Availability
Family and Children Surrogacy Agreements Children's Act Section 295 Psychological Assessment of Children Best Interests of Child Court Discretion in Surrogacy Emotional Availability

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Three Surrogacy Applications

Applicant

Donrich Thaldar

Applicant

Brigitte Clark

Applicant

Willene Holness

Applicant

Sheetal Soni

Applicant

Bonginkosi Shozi

Applicant

Ntokozo Mnyandu

Applicant

Aliki Edgcumbe

Applicant

Melodie Labuschaigne

Applicant

Magda Slabbert

Applicant

Procedural Posture

Ex Parte Application / Determination of Discrete Legal Question Prior to Consideration of Surrogacy Applications

Legal Issues

  1. 1 Is it a general requirement that existing children of commissioning parents and surrogate mothers be assessed by a clinical psychologist before confirmation of a surrogacy agreement?
  2. 2 Should courts retain discretion to order such assessments based on the facts of each case?
  3. 3 Does a blanket requirement for psychological assessment align with the best interests of the child principle under South African law?

Ratio Decidendi

The court held that it is not a general requirement in surrogacy applications for existing children of commissioning parents or surrogate mothers to be assessed by a clinical psychologist. Such a blanket rule would be inconsistent with the best interests of the child principle, which requires individualised, fact-based inquiry. The Children's Act and established jurisprudence provide that the emotional availability of the surrogate mother is the relevant criterion, and expert evidence confirms that mandatory psychological assessments may be harmful and are not supported by empirical research. Courts retain discretion to order assessments of children if the circumstances of a particular...

Court Disposition

Declaratory order granted: No general requirement for psychological assessment of children in surrogacy applications; courts retain discretion to order such assessments if warranted.

Orders

  • It is declared that it is not a requirement of general application in applications for the confirmation of surrogate motherhood agreements that existing children of commissioning parents and surrogate mothers are assessed by a clinical psychologist to determine whether the children are prepared for the surrogacy and...
  • Courts, considering applications for the confirmation of surrogate motherhood agreements, have a discretion to require that existing children of commissioning parents and surrogate mothers are assessed by a clinical psychologist to determine whether the children are prepared for the surrogacy and its outcome.