The Validity of Surrogacy Facilitation Agreements: [An Analysis of Ex Parte HPP; Ex Parte DME  2 All SA 171 (GP)]
Author: Themba Skosana
Affiliations: LLB LLM (UNISA), Senior Lecturer, Department of Private Law, University of South Africa
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 548 – 558
Commercial surrogacy is prohibited in South Africa. In Ex parte HPP, the court dealt with a surrogate facilitation agreement which was tainted by an illegal surrogate motherhood agreement as a result of payments of surrogate facilitation fees. The court applied contract law principles to justify confirmation of the two surrogate motherhood agreements and to avoid the penal provisions of the Children’s Act applicable to such illegality. This article argues that this is the incorrect approach and that the court must focus on the provisions of the Act that, except for specific situations, forbid payments in connection with the confirmation or execution of surrogate agreements.