South Africa Case Law

Ex Parte: JCR and Others (51606/21)

Ex Parte: JCR and Others (51606/21) [2022] ZAGPPHC 209; 2022 (5) SA 202 (GP) (16 March 2022)

Court

North Gauteng High Court, Pretoria

Case number

51606/21

Judge

Neukircher

The court held that confirmation of a surrogate motherhood agreement under section 295 of the Children’s Act requires a thorough assessment of the interests of all children affected, including the surrogate’s own children and any children of the commissioning parents. The court found that the applicants had provided sufficient medical and psychological evidence demonstrating the third applicant’s suitability for another surrogacy, and that the children of the surrogate had been adequately prepared and assessed for the psychological impact. The judgment emphasized that the best interests of al…

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• Surrogate Motherhood Agreement
• Children Act
• Best Interests Of Child
• Psychological Assessment
• Parental Rights
• Medical Suitability

APP and Another v NPK (17962/2020)

APP and Another v NPK (17962/2020) [2021] ZAWCHC 69 (11 March 2021)

Court

Western Cape High Court, Cape Town

Case number

17962/2020

Judge

Bozalek

The court held that section 295(a) of the Children’s Act should not be interpreted narrowly to require absolute physical incapacity to give birth. Instead, it encompasses situations where a pregnancy would pose significant medical risk to the health or life of the mother. The first applicant’s medical and psychological conditions, supported by expert evidence, are permanent and irreversible and render any further pregnancy life-threatening. The applicants satisfied all statutory requirements for confirmation of the surrogate motherhood agreement, including domicile, use of gametes, suitabilit…

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• Surrogate Motherhood Agreement
• Children S Act
• Interpretation Of Statute
• Medical Risk In Pregnancy

KAF and Others (2018/5329), Ex parte

KAF and Others (2018/5329), Ex parte [2018] ZAGPJHC 529; 2019 (2) SA 510 (GJ) (28 June 2018)

Court

South Gauteng High Court, Johannesburg

Case number

2018/5329

Judge

Siwendu

The court found that ND meets the statutory criteria for suitability as a surrogate mother under section 295 of the Children’s Act, based on comprehensive psychological and medical assessments, her stable family environment, and her altruistic motivation. The financial arrangements were deemed transparent and limited to reasonable expenses, not constituting unlawful commercialisation. The court emphasised the need for objective criteria in assessing suitability, noting that each case must be judged on its own facts and that personal perceptions should not influence the decision. The previous…

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• Surrogate Motherhood Agreement
• Children's Act
• Suitability Of Surrogate
• Commercialisation Of Surrogacy
• Constitutional Rights
• Psychological Assessment

CJD and Others (53101/2017), Ex parte

CJD and Others (53101/2017), Ex parte [2017] ZAGPPHC 717; 2018 (3) SA 197 (GP) (17 November 2017)

Court

North Gauteng High Court, Pretoria

Case number

53101/2017

Judge

R G Tolmay

The court found that the applicants failed to adequately address how their living arrangements and the need for discretion regarding sexual orientation would affect the best interests of the child. The affidavits did not provide sufficient detail on how the applicants would function as a family unit or how the child would be impacted by one parent's reluctance to be publicly identified as a parent in a same-sex relationship. The court emphasized that all relevant information must be disclosed in affidavits and that the interests of the child must be paramount. In the absence of convincing evi…

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• Surrogate Motherhood Agreement
• Best Interests Of Child
• Parental Rights And Responsibilities
• Affidavit Disclosure Requirements

KAF and Others (14341/17), Ex parte

KAF and Others (14341/17), Ex parte [2017] ZAGPJHC 227 (10 August 2017)

Court

South Gauteng High Court, Johannesburg

Case number

14341/17

Judge

Modiba

The court found that the applicants failed to provide sufficient evidence that ND is not using surrogacy as a means of income, given her probable indigence and lack of full financial disclosure. The psychological assessment of ND was deemed inadequate and unsupported by the facts, raising concerns about her suitability and ability to cope with the psychological consequences of surrogacy. The involvement of Medfem Clinic and associated professionals posed a risk of commercialisation, with insufficient disclosure regarding their relationships and financial arrangements. The court emphasised the…

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• Surrogate Motherhood Agreement
• Children's Act Section 295
• Commercialisation Of Surrogacy
• Psychological Wellbeing Of Surrogate
• Full Disclosure In Ex Parte Applications

SA and Another v IO and Another (82202/2014)

SA and Another v IO and Another (82202/2014) [2014] ZAGPPHC 953 (8 December 2014)

Court

North Gauteng High Court, Pretoria

Case number

82202/2014

Judge

K.LA.M Manamela

The High Court confirmed a surrogate motherhood agreement and authorised artificial fertilisation under the Children’s Act after finding statutory compliance.

• Surrogate Motherhood Agreement
• Children's Act 38 Of 2005
• Artificial Fertilisation
• Contractual Capacity
• Prohibition Of Commercial Surrogacy
• Surrogate-motherhood-agreement