Three judges in the Gauteng High Court (Pretoria), led by Deputy Judge President Aubrey Ledwaba, recently had to deal with the issue of whether as a rule, a clinical psychologist should first assess existing children in a family to determine whether they were prepared for the outcome of surrogacy or not, hearing submissions from nine academics – including four professors – who assisted as friends of the court.
Surrogacy has become a big topic in the country’s courts over the years, as every surrogate motherhood agreement must first be confirmed by the court before prospective parents can go ahead, reports The Mercury.
If the court does not endorse such an agreement, it is illegal.
In an earlier judgment, Judge Brenda Neukircher had developed criteria and ordered that the interests of existing children on both sides should also be considered, highlighting the importance of the surrogate’s children being prepared for a pregnancy. She ruled that if children were old enough, they too should be counselled.
In the latest case, Ledwaba called on academics in health and family law to shed more light on the questions, especially on what was in the children’s best interests, as the court was faced with three more surrogacy applications.
The court concluded that …the child’s best interest should be determined by the facts of individual circumstances, rather than application of general rules.
“While the interests of a particular child may be served by psychological evaluation, it is not the case that the best interest of children, generally, is served by mandatory psychological evaluation,” the judge said, adding that under the Children’s Act, it was important to ensure parents were capable of catering for the children’s needs, including their emotional needs.
It was thus important for a court to consider the “emotional availability” of the parents through an adequate psychological report before surrogate agreements can get the green light.
Judge Ledwaba ruled that while it was not a requirement to obtain an expert opinion on whether the existing children were prepared for the expansion of the family via surrogacy, the courts still had a discretion in this regard.
See more from MedicalBrief archives:
‘Genetic link’ stipulation in Children’s Act foils infertile man’s surrogacy bid
Medical assessment to be required for surrogacy agreements – Gauteng High Court
Rare medical incident gives rise to legal tussle over surrogacy