The constitutional and contractual implications of the application of chapter 19 of the children's act 38 of 2005

Abstract

In this research, I carefully and coherently examine Chapter 19 of the Children's Act 38 of 2005 as the first legislation to afford surrogate motherhood agreements legal recognition in South Africa. I argue that the application of Chapter 19 imposes a number of unwarranted limitations on several of the constitutional rights of the parties to a surrogacy agreement. In addition, I propose that Chapter 19 is not in accordance with the principal of the best interests of the child. I examine the history of surrogate motherhood in South Africa and establish that, prior to the enactment of Chapter 19, no legislation expressly afforded surrogate motherhood agreements legal recognition. Hence, prior to the enactment of Chapter 19, parties who entered surrogacy agreements could, first, not rely on the agreement to enforce contractual obligations, and secondly, the legal positions of the parties to the agreement were uncertain. Thirdly, a child born of a surrogacy agreement was seen as the child of the surrogate mother and not of the commissioning parents. Thereafter, I critically investigate the 1999 recommendations of the Ad Hoc Parliamentary Committee on Surrogate Motherhood, in light of the Constitution and in light of the general law of contract. In this, I conclude that several of the recommendations of the Ad Hoc Parliamentary Committee are constitutionally suspect and may give rise to future constitutional and contractual implications. In light of these recommendations, I then direct the reader's attention to the impugned recommendations of the Ad Hoc Parliamentary Committee which were incorporated into Chapter 19. This leads to a detailed examination of these provisions (and exclusions) and a determination of whether the application of these provisions (and exclusions) may impose an unreasonable and unjustifiable limitation on the rights of all the parties to the surrogacy agreement. Whilst investigating surrogacy agreements in terms of the general law of contract, I establish that Chapter 19 of the Children's Act, although it affords expression to the right to make decisions regarding reproduction, limits the rights of persons who choose surrogacy as a form of assisted reproduction. Parties are not permitted to choose with whom they wish to contract and what obligations will arise as a result of the agreement. I conclude that breach of contract in the case of surrogacy agreements cannot be redressed by the primary remedies provided by the general law of contract. In addition to this, I argue that commercial surrogacy, if adequately regulated, can be used to protect the interests of all the parties to a surrogacy agreement, as well as to economically uplift the life of the surrogate. Lastly, I suggest recommendations for amendments to Chapter 19 which would create legislation which truly gives effect to the right to make decisions regarding reproduction, as well as providing greater contractual certainty for the parties to the surrogacy agreement.