What Is The Role of the High Court When Applying For Surrogacy?

The agreement between a surrogate mother and the commissioning parents must be confirmed by the High Court, as it is a unique contract. After the conclusion of the surrogacy agreement the consequences which may follow could have far-reaching, and sometimes unintended outcomes.

The physical well-being of the surrogate mother and the child to be born as well as the psychological consequences which may follow when the child is born and handed over to the commissioning parents is of utmost importance.

The High Court has a vital role to play in confirming the agreement and cannot be a rubber stamp validating private arrangements between contracting parties because it is the ‘upper guardian’ of all minor children. It is directed to advance the spirit and the objectives of the Children’s Act without adding additional obstacles for those applying to validate the agreement.

The utmost good faith is expected and required of both the surrogate mother and the commissioning parents. The Court must ensure that both the formal and the practical requirements of the Act are complied with.   It does sometimes happen that applications of this kind contemplated by the Act are brought on an ex parte* basis and the Court is thus dependent upon the information placed before it by the Applicants.

The Court must be satisfied that the conclusions arrived at, are supported by facts therefore vague and generic allegations in this regard that fall short of supporting a conclusion, may well render an application defective.  It would also follow, where such an application is brought on the basis of urgency, the proper grounds for urgency should be clearly set out in the papers as contemplated in Rule 6 (12) (b) of the Uniform Rules of Court.

The High Court when hearing a surrogacy application and in performing its judicial discretion, may request additional information from the parties or any other institution, to assist in the determination of the application. A list of applicable documentation as set out in the Act and forthcoming from the office of the court should accompany the application

In order to protect the identities of the parties with regards enrolment or registration with the Court, the guidelines noted below should be followed:

Any party bringing an application will follow normal procedures for the matter to be issued by the Registrar.

The court file, as well as a letter explaining the facts and the application, must, in terms of section 295 of Act 38 of 2005 be brought to the office of the Deputy Judge President and then request a date for hearing as well as a letter explaining any urgency that exists.


* ex parte is a Latin term meaning “from one party”, indicating that one of the parties in respect of the proceedings is absent.

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