Pretoria - Three judges had to deal with the issue of whether, as a rule, a clinical psychologist should first assess the existing children in a family to determine whether they were prepared for the outcome of surrogacy.
The Gauteng High Court, Pretoria, led by Deputy Judge President Aubrey Ledwaba, listened to the submissions in this regard by nine academics – including four professors – who assisted as friends of the court.
Surrogacy has over the years become a big topic in the country’s courts.
This is because every surrogate motherhood agreement has to first be confirmed by the court before prospective parents could go ahead.
If the court does not endorse such an agreement, it is illegal.
In an earlier judgment, a judge developed criteria and ordered that the interests of existing children on both sides must also be taken into account.
Judge Brenda Neukircher, in that judgment, highlighted the importance that the children of the surrogate needed to be prepared for a pregnancy.
She ruled that if children of the parents were old enough, they too should be counselled.
In the latest case, Judge Ledwaba called on academics with extensive knowledge in health and family law to shed more light on the legal questions, especially on what was in the best interest of the children in surrogacy agreements. Their knowledge was called on, as the court was also faced with three more surrogacy applications.
The court concluded that a general requirement that children be assessed before a surrogate motherhood agreement is confirmed, is not aligned with the established position in our law, that the child’s best interest should be determined by the facts of individual circumstances, rather than application of general rules.
“While the best interests of a particular child may be served by psychological evaluation, it is not the case that the best interest of children, generally, is served by mandatory psychological evaluation,” Judge Ledwaba said.
He said it would not be appropriate for children of prospective surrogate mothers, or commissioning parents, to be assessed unless the circumstances of a particular case warrants it.
“Our view is that the case-by-case approach aligns with the general approach to the child’s best interests.”
Judge Ledwaba added that in terms of the Children’s Act, it was important to ensure that the parents were capable to cater for the needs of the children, including the emotional needs.
It is thus important for a court to consider the “emotional availability” of the parents through an adequate psychological report before surrogate agreements can get the green light.
He said that if the court was not satisfied through the report regarding the parents that the best interests of the existing children were being served, the court had a discretion to ask for an evaluation of the children before a surrogacy agreement was confirmed.
The judge said courts could not merely rubber stamp these agreements and had to ensure that the best interests of the existing children – both of the surrogate mother and the commissioning parents – were served.
Judge Ledwaba ruled that while it was not a requirement to obtain an expert opinion on whether the existing children were prepared for the expansion of the family via surrogacy, he ordered that the courts still had a discretion in this regard.