TY - JOUR AU - Baase, Mathabo PY - 2019/05/21 Y2 - 2024/03/29 TI - The Ratification of Inadequate Surrogate Motherhood Agreements and the Best Interest of the Child JF - Potchefstroom Electronic Law Journal JA - PER VL - 22 IS - 0 SE - Articles DO - 10.17159/1727-3781/2019/v22i0a6083 UR - https://perjournal.co.za/article/view/6083 SP - 1-26 AB - <p>South Africa has developed domestic legislation governing all surrogacy matters within the country. These provisions are contained in Chapter 19 of the <em>Children's Act </em>38 of 2005.</p><p>In <em>Ex parte MS; In re: Confirmation of Surrogate Motherhood Agreement</em> 2014 2 All SA 312 (GNP), the commissioning parents did not adhere to the requirement provided by Chapter 19. The parties to the (initially informal) surrogacy agreement authorised the artificial fertilisation of the surrogate mother prior to the confirmation of the surrogate motherhood agreement by the court. In considering the best interest of the resultant child, the High Court decided to ratify the inadequate surrogate motherhood agreement.</p><p>This discussion aims to establish whether the court's judgement in <em>Ex parte MS; In re: Confirmation of Surrogate Motherhood Agreement</em> 2014 2 All SA 312 (GNP) was in accordance with the provisions of current legislation and case law. It furthermore aims to answer two primary questions: firstly, whether adjudicators should make use of the best interest of the child when ratifying inadequate surrogate motherhood agreements; and secondly, in what manner the court should go about implementing the best interest of the child when validating inadequate surrogate motherhood agreements.</p><p>It is submitted that courts should refrain from applying the best interest of the child as a constitutional right in inadequate surrogacy matters where the child is yet to be born alive, in accordance with the Digesta Texts. Parties to the invalid agreement should rather be instructed to make use of a section 22 parental responsibilities and rights agreement, a section 28 termination agreement, or adoption as provided for by chapter 15 of the <em>Children's Act</em>.</p><p>&nbsp;</p><p><a href="https://scholar.google.com/citations?user=C4ZqO54AAAAJ&amp;hl=en" target="_blank" rel="noopener"><img src="/public/site/images/bontle-1813/Google_Scholar96.png"></a> &nbsp;&nbsp; <a href="https://www.scienceopen.com/document?vid=9d4ceea1-51c8-4e70-ad80-801c59e96f68" target="_blank" rel="noopener"><img src="/public/site/images/bontle-1813/SO13.png"></a></p> ER -