The North Gauteng High Court in Pretora, Republic of South Africa, issued a judgment on September 27, 2011, approved a surrogacy contract involving a male same-sex couple and a woman who agreed to be their gestational surrogate. In the Ex Parte Matter Between WH, UVS, LG, BJS. The case provided an opportunity to apply the terms of Section 295 of the Children's Act 38 of 2006, enacted to provide a legal and regulatory framework for surrogacy agreements in South Africa.
As summarized and quoted by the court, it seems that prior to the passage of this statute surrogacy agreements had no legal status as enforceable contracts, although the court reports that informal surrogacy was practiced. Passage of the Act was apparently prompted by a recognition that people were going beyond the informal practices of the past where acquaintances would help each other out, to a modern system where on-line advertising and agencies have developed to assist people who need the services of a surrogate to find one.
From the court's description, it appears that the legislature has made a policy decision against authorizing compensated surrogacy, for the court is directed to inquire into the financial arrangements and it is clear that any compensation to the surrogate is limited to covering expenses of providing the service, and not a fee for her time and effort. The court is required to inquire into the qualifications of the intended parents to raise a child, and surrogacy for the purpose of relieving a healthy fertile heterosexual couple of the burdens of pregnancy and childbirth is not recognized under this Act. Its purpose is to recognize surrogacy contracts where the intended parents are incapable of conceiving a child on their own.
This case provided the court with the first opportunity to approve such a contract involving a same-sex couple, and the court took care to note that a psychologist's report indicated that the two men involved were well-qualified to raise a child. In describing the role of the court in approving such a contract, the tribunal stated: "What is often at stake is not only the physical well being of the surrogate mother and the child to be born but also the psychological consequences that may follow upon the birth of the child and the process of the handing over by the surrogate mother to the commissioning parents of the child born out of the arrangement. That being so, a Court has a vital role to play in the confirmation of the agreement. While on the one hand it is enjoined to advance the spirit and the objectives of the Act without creating or placing additional obstacles in the path of litigants who seek relief, on the other as the upper guardian of all minor children it cannot simply be a rubber stamp validating the private arrangements between contracting parties."
Thus, the court's role is to ensure that the "formal and substantive requirements of the Act are complied with." Since an action to confirm the agreement is brought jointly by the parties and is thus, in a sense, "ex parte," it falls to the court to take extra care to ensure that the requirements of the Act are met, and "the Court is invariably dependant upon the information placed before it by the Applicants and thus the utmost good faith would be expected and required of the Applicants." In this case, the court found that the commissioning parents "have made out a proper case for the relief they seek," and that the intended parents as well as the surrogate mather are "suitable persons as contemplated in the Act." Thus, the court confirmed the surrogacy agreement, and the case, which will be published officially, will stand as precedent that same-sex couples (in this case two men who are not natives of South Africa but who have both established domicile and married there) can qualify to enter into such contracts.
This distinguishes South Africa from some other countries where only surrogacy agreements involving married heterosexual couples may be approved, and donor insemination services are not always made available for lesbian couples.