CoA �washes hands� in surrogacy case
Mpho Mokwape | Friday July 29, 2016 15:37
The bench yesterday questioned how the failed attempts at surrogacy managed to avoid or evade the South African statutes since the record before court did not disclose such information.
The complexity and the judges’ stand was that according to the court papers they suggested that the ex couple, Gofamodimo Sithole and Lekoko Baatweng have infringed the South African laws when they agreed to surrogacy and its unfinished process.
When delivering judgement, Justice Craig Howie said the trial court had no jurisdiction to grant an order stating what was to be done with the embryo either by the ex wife or the clinic’s doctors.
The judge explained that even if one was to assume that the ex-wife’s right of reproductive freedom was indeed superior to that of the ex-husband, there was still insurmountable obstacle of jurisdiction.
“The embryo and the clinic are in another jurisdiction and, neither the doctors nor the clinic staff are bound by any order of the court here.
The courts of Botswana cannot lend themselves to, or permit the orders they give to enable conduct which wound amount, to their knowledge, the commission of an offence in another country. For these reasons the order of the trial court cannot stand,” he said.
Howie said the South African Children’s Act of 2005 required that the couple should be domiciled in the country, as compared to the parties who are domiciled in Botswana.
He maintained the Act required that the agreement be entered into in South Africa and as such, there was no evidence that there was such an agreement, or that the ex husband would sign any such agreement.
“The conclusion of the trial court ought to have been that the South African provisions referred to were incapable of compliance and that use of the embryo in attempted surrogacy as contemplated by the ex-husband would contravene them,” said Howie.
He said as such the trial court should not have empowered the ex-wife to have the embryo used for implanting in a surrogate mother since it did not seek to determine what was the agreement and what it entailed which the parties reached while in Botswana before going to the clinic.
He said apart from the parties’ agreement before attending the clinic they must have also concluded an agreement with the clinic not only a consent to embryo freezing in a form only signed by the ex-wife.
“The form stated that the embryo remained the parties’ property until otherwise indicated by writing that the embryo may be discarded or donated.
From that evidence it is plain that the husband did not consent to what was to happen to the embryo after divorce,” he said.
According to facts of the case the couple were married 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 and decided to explore a number of options and later decided to go the surrogacy route in SA.