Existing children should be considered in surrogacy agreements, says judge

A judge has now developed criteria and ordered that the interests of existing children on both sides must also be taken into account with surrogacy. Picture: File

A judge has now developed criteria and ordered that the interests of existing children on both sides must also be taken into account with surrogacy. Picture: File

Published Apr 11, 2022


Pretoria - Surrogate motherhood 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.

A judge has now developed criteria and ordered that the interests of existing children on both sides must also be taken into account.

Gauteng High Court Judge Brenda Neukircher, in a recent judgment, took a closer look at the issues regarding the children already in the existing families – the family due to receive a baby, as well as the children of the surrogate mother.

Up to now the courts, in dealing with applications to confirm a surrogate motherhood agreement, mostly looked at the parties involved and whether such an agreement would be in the best interest of the child due to be conceived.

“However, every single surrogacy application affects not only the rights and interests of the unborn child, but also those of the children who are already part of the family unit of the surrogate and (sometimes) the commissioning parents. The question is, therefore, what of the interests of this child? How does a surrogate pregnancy affect the surrogate mother’s own child/children,” Judge Neukircher asked.

She said one had to bear in mind that the existing children watched the pregnancy for nine months, they knew she was carrying a child, they saw her going to hospital to deliver the baby, yet she never brought the baby home.

“Is it important that the interests of these children be protected, and, if so, how does a court do that?” Judge Neukircher asked.

She said the other issue was the children the commissioning parents might already have?

In most of the surrogacy cases, if not all, there is an “at arm’s length” distance between the commissioning parents and the surrogate, and therefore the children of the commissioning parents do not have the advantage of processing the fact that a sibling baby will join them in nine months’ time.

Judge Neukircher pointed out that in many cases, these children might be suddenly confronted with this “stranger” who now takes up their parents’ time and attention.

Therefore, she said the issue was whether guidelines should be put in place to protect the interests of these children, given that the court was the upper guardian of all minor children.

Judge Neukircher’s comments and subsequent judgment were sparked by an application by a couple to have a second surrogate agreement made an order of the court. The first applicant was unable to fall pregnant because she had a history of breast cancer and was unable to conceive.

They already had a child conceived by the same surrogate mother, who was now also the subject of this agreement. A court earlier confirmed the agreement for the first child, but the couple had one frozen egg left and wished to expand their family using the same surrogate mother.

They had a 10-month old child born from the previous surrogate arrangement.

The surrogate mother and her husband, who had two children of their own, were happy to provide another baby to the couple who could conceive. But Judge Neukircher expressed her concern because the surrogate mother only recently delivered the previous baby to the applicants.

Her concerns included what effect another pregnancy, so soon after the previous one, would have on her body, and how the surrogate’s children in this case would feel if their mother once again carried a child for another couple.

“Should a mechanism be put in place for children of surrogate parents to receive the necessary counselling and therapy to prepare them for the inevitable process that follows?” Judge Neukircher questioned.

She requested that the children be assessed by a psychologist. It turned out that both were proud of the fact that their mother was helping others to have a family of their own.

Both were well informed about the surrogacies, and did not ask to see the babies as they became older, nor did they see them as being part of their own family.

Judge Neukircher said this highlighted the importance that the children of the surrogate needed to be prepared for her pregnancy.

She ruled that in these cases, this was the way to go. If the children of the receiving parents were old enough, they, too, should be counselled in this regard.

Judge Neukircher said surrogate agreements were far from just being rubber-stamped by courts. The well-being of the existing children should be weighed up before the courts agreed to the surrogate agreements.

She ruled that the courts had to look at the health of the carrying mother in deciding these agreements, especially if one pregnancy followed close on the other.

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