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Assisted Reproduction

South African Court Approves Same-Sex Surrogacy Contract

I wish more states in America were as progressive as Johannesburg:

The North Gauteng High Court has confirmed a surrogate motherhood agreement between a gay couple and the mother who is carrying their child. Judges Ronel Tolmay and Jody Kollapen also laid down strict guidelines for the consideration of such agreements by the courts to ensure consistency and develop a uniform practice in such matters.

The gay couple, who were married a year ago, the surrogate mother and her life partner applied to the court for an order to confirm their agreement. The mother was introduced to the couple through an online egg donation agency, but no fee exchanged hands for the introduction.

They previously also obtained an order to confirm a surrogacy agreement with another woman, but the mother had to withdraw after becoming ill during the process. The Judges made it clear that courts should in all instances where an agency was involved be fully informed of all the facts and circumstances relating to the agency in order to avoid commercial

They said ideally the involvement of agencies should be the subject of regulation and oversight in order to avoid the abuse of especially underprivileged women. They stressed that care should be taken that different tests were not applied to same sex couples which could be discriminatory, as in some cases couples are required to show that there would be so-called “maternal influences” on the child.

“The mothering of the child is a function that very often does not have anything to do with the gender of the parent. In any event many children grow up without a father or a mother and the court should safeguard that it does not try and create a utopia for children born from surrogacy that is far removed from the social reality of society,” they said.

They added that care should be taken that the rights of the commissioning parents were not violated by unnecessary invasion into their privacy or by setting the bar too high for parents whose only option was to have a child by way of surrogacy.


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