Applicants were parties to a surrogacy agreement, namely the commissioning parents and the surrogate mother. They submitted the application to confirm a surrogacy agreement as required under Section 292 as read with Section 295 of the Children’s Act, 38 of 2005 (the Act).  According to Section 292, in order for a surrogacy agreement to be valid, it must be written and signed by all parties and confirmed by the High Court. The Act therefore envisages entering into a valid agreement before implementing its requirements. Section 296(1)(a) of the Act prohibits artificial insemination before the surrogate agreement is confirmed by the Court. Section 303(1) renders it an offence to fertilize or assist in fertilizing a woman before a surrogacy agreement is confirmed by the Court. 

In this case the parties entered into a verbal surrogacy agreement and proceeded to implement artificial fertilization before the agreement was confirmed by the High Court. By the time they submitted the application to the Court, the surrogate mother was 33 weeks into the pregnancy.  

This case therefore raised a novel issue, as the Court had never addressed a situation where parties applied to confirm a surrogacy agreement when it had already been implemented. 

This case provides guidance on interpreting legislation to promote constitutional rights and advance the best interests of a child where such legislation does not provide clear directions on how to address situations where parties fail to comply with the proper processes surrounding surrogacy. It took the Court some creativity to save the agreement from collapsing, and it had to reason around the common law principle that prohibits legislation to be interpreted in a manner that condones unlawfulness. It would be prudent for a legislature to address the gap that the case exposed to avoid leaving it to the courts to determine the issue of validating surrogacy agreements post-fertilization on case-by-case basis.