Legal wrangle over kids born from surrogacy

Legal dispute regarding surrogate-born children. Picture: File

Legal dispute regarding surrogate-born children. Picture: File

Published Mar 8, 2024


Three husbands and two children born from surrogacy and an application to have contact with the children pending a divorce is the sticky issue with which the Western Cape was confronted.

DR (the applicant) turned to court in a bid to have contact with his now estranged husband’s (identified only as NM) children ‒ a girl turning six this year and a two-year-old boy.

The issue is that the girl was born via surrogacy during a previous marriage of NM to another man. They have a parenting plan in place for the previous husband to have contact with the girl.

However, after NM’s divorce from his first husband and prior to his marriage to his second husband (the applicant), NM had another child via surrogacy.

While the applicant at the time said he would help take care of this child (now 2) and even adopt him if they got married, the applicant was not part of the surrogacy agreement and thus does not have any legal standing regarding the later child, as well as towards the girl.

He, however, told the court that he mainly took care of these children during his relationship with NM and during their short-lived marriage. He thus has a bond with the children and he wants interim contact with them pending an investigation by an expert as to what is in the best interest of the children.

Both NM and his previous husband (the father of the girl) opposed the application.

NM told the court that he is a good father (both children stay with him) and that he can take care of his own children. He said the applicant has no legal rights regarding these children.

The previous husband, in turn, stated that he is the father of the girl and he has a parenting agreement in place with NM in terms of which he sees his daughter. According to him, the applicant has no place to interfere with his child.

The applicant, who has two children of his own, born via surrogacy, was living with his children and a nanny in a flat in Sea Point when he met NM. The latter also moved into a unit in the complex at the time, with his then one child.

Six months into their relationship, NM expressed his wish to have another child ‒ the now 2-year-old.. The applicant said he was not involved in the legal process for the child’s surrogacy agreement. Thus, he does not appear on the child’s birth certificate.

However, he said, they jointly selected a surrogate mother and he was thus involved with the child from the start. The baby boy was born in April 2022.

This was after the applicant and NM moved in together with their four children and they got married last year.

However, they are currently separated. No children were born during their marriage.

The applicant said that he had to take care of all the children from the start as NM suffered from bipolar disorder and he took sleeping tablets at night, which totally knocked him out.

According to the applicant, he was the one who got up at night to attend to the baby, as his husband, when asleep after taking the tablets, could not even hear the crying child.

He said he was also the one who cooked and took care of all four children in the end ‒ his own two and his husband’s two.

Thus, he said, he has a very strong bond with his husband’s two children. The latter moved out of their communal home with his two children in December when their marriage went sour.

The applicant at first asked the court to, subject to an investigation into the best interests of the children, award him custody of the 2-year-old, with visitation rights regarding the girl. He later abandoned this and asked that he be awarded the rights that the children may visit him on holidays and certain days.

The court said that these two children have a close relationship with the applicant's children and with him. The four children have been raised together as “siblings: for a period of two to three years.

While the court accepted that these two children have their own parents, it was of the view that there is an acute need for the children to maintain that bond.

Upon considering all the evidence, the court said it believed that the applicant must be allowed to enjoy certain access to the children. It also ordered that an expert investigate what is in the best interest of these two children in the long run regarding contact with the applicant.

Pretoria News