Surrogacy case opens can of worms
Mpho Mokwape | Friday July 15, 2016 12:14
According to the court papers, one complexity is that the divorced couple, Gofamodimo Sithole and Lekoko Baatweng may have infringed on South African laws when they agreed to surrogacy and its unfinished process.
This is because the Court of Appeal yesterday said they did not have any jurisdiction over the frozen embryo and any other agreements that had been made and suggesting that maybe the matter was better placed in South Africa.
Baatweng who does not want anything to do with the embryo since the divorce was appealing the High Court judgement that gave his former wife her wishes of seeing the process of surrogacy taken to its logical conclusion. He has suggested that the project clearly contravened the provisions of the SA Children’s Act.
In his court papers, Baatweng’s argument was that the whole plan was contrary to South African law therefore it was unlawful and that the parties had been aware of this throughout since they are not SA citizens.
He explained that they took the risk of infraction of SA law consciously in a bid to have a child.
“Now standing on the ashes of the marriage, I am not willing to put myself at further risk of criminal liability. We no longer have a contract with any surrogate mother to carry the embryo and past contracts were for the failed attempts,” he said.
Baatweng further explained even if the case was to be heard, the court had no jurisdiction over the embryo, which was in a foreign country and can scarcely be deemed a property.
He further said that his former wife had failed to plead and to prove the foreign law regarding frozen embryos in SA and that she had failed to prove any foreign law on surrogacy in SA to put the court in a position to judge the fate of the embryo.
Moreover Baatweng maintained that Sithole had failed to demonstrate that he had no enforceable right against him as regards to the frozen embryo and that she had failed to demonstrate that the embryo was a living thing or it had any right to life claimable against him.
As such Baatweng, represented by Kgosietsile Ngakaagae, had pleaded with the court to do away with the matter arguing that the court a quo erred in directing that the surrogacy be concluded as its legality in SA were prescribed by the Children’s Act that among others clearly states that the surrogate mother must have a one living child, domiciled in SA and both commissioning parents. However earlier on Yandani Boko representing Sithole said that their case at the court specifically dealt with the confirmation of the surrogacy agreement.
He said that they sought that because surrogacy agreement was a contract whose validity was dependent upon the confirmation of the High Court and that it was a contract of a special kind and unique.
Boko argued that all they needed was a custody order to go back to SA and finish what the former couple had already started before the marriage went sour.
“In SA confirmation of surrogacy agreement is governed by the Children’s Act. The Act provides the legal framework for willing parties to facilitate surrogacy agreements with the provision that the confirmation by the High Court of all surrogacy agreements is required to render any such agreements valid,” he said.
He further submitted that a lot was at stake and that the court confirms the court a quo judgement. According to the facts of the case the couple were married to each other on March 11, 2005 in community of property and at the time of the marriage between the two, the husband knew that the wife had no womb since it was removed on account of a pervious complicated pregnancy during which she gave birth to a still born child.
As the marriage progressed, the couple saw the need to have children, they explored a number of options and later decided to go the surrogacy route.
According to court documents the parties entered into a verbal agreement to explore alternative reproductive methods of conceiving a baby or babies and later consulted a renowned gynecologist in South Africa.
“The couple agreed to go the surrogacy route. As part of their agreement to have a surrogate child, the parties contracted a woman of Zimbabwean origin to carry the baby. According to the then wife the agreement was that the couple would live with the woman before and during the pregnancy to sustain her and pay her a monthly stipend of P1,000.
She would at the same time also do household chores for them. Upon delivery of the child the couple was to pay the surrogate mother a once off sum of P50,000 then get out of the picture,” read the documents.
Following the harvesting of the egg and sperms by the doctor fertilisation process, there was successful materialisation of five embryos. In court yesterday it was confirmed that the frozen embryo was still available for implantation. It is frozen in a laboratory in SA.
Judgement will be issued on July 28.