SOUTH AFRICA Law and Practice Contributed by: Zenobia du Toit and Samantha Lewis, Miller du Toit Cloete Inc
• the commissioning parent or parents are not able to give birth to a child and that the condition is per - manent and irreversible (Section 295 (a), CA); • no artificial fertilisation may take place prior to the court confirming the agreement (Section 296 (1), CA); and • the child born of the agreement is the child of the commissioning parents from birth (Section 297 (1) (a), CA). A surrogacy agreement would be invalid if the concep - tion of the child born of the agreement was not effect - ed by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents (Section 294, CA). Whether the commissioning parent is the genetic parent or not, the same requirements are applicable before a court will confirm the surrogacy agreement. In addition to the commissioning parent or parents having to furnish medical evidence to show the per - manent and irreversible inability to give birth, they must also provide evidence showing that they are competent to enter into the agreement and are in all respects suitable persons to accept the parenthood of the child that is to be conceived; and evidence that they understand and accept the legal consequences of the agreement and their rights and obligations in terms thereof. In practice, fertility and psychologist expert reports are furnished to the court in support of these “competencies”. Unlike in the instance of adoption, the CA does not expressly provide that prospective non-genetic sur - rogacy parents must be fit and proper to be entrusted with full parental responsibilities and rights in respect of the child and willing and able to undertake, exercise and maintain those responsibilities and rights. Interested Parties Section 23, CA provides that any person having an interest in the care, well-being or development of a child may apply to court for an order granting such interested party contact with or care of the child. In YCM v NDN (CA04/2024) [2024] ZAECMKHC 144 (10 December 2024), the applicant was the maternal
grandmother who successfully applied for rights of contact in respect of her grandchildren after the death of their mother (her deceased daughter). Care and Contact In South Africa, “care” and “contact” can be likened to “custody” and “access”. However, in terms of the CA, they both encompass much broader qualities as follows. Care “Care” includes, where appropriate: • within available means, providing the child with a suitable place to live, living conditions that are con - ducive to the child’s health, well-being and devel - opment, and the necessary financial support; • safeguarding and promoting the well-being of the child; • protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards; • respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of the CA; • guiding, directing and securing the child’s educa - tion and upbringing, including religious and cultural education and upbringing in a manner appropriate to the child’s age, maturity and stage of develop - ment; • guiding, advising and assisting the child in deci - sions to be taken by the child in a manner appro - priate to the child’s age, maturity and stage of development; • guiding the behaviour of the child in a humane manner; • maintaining a sound relationship with the child; • accommodating any special needs that the child may have; and • generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child. Contact “Contact”, in relation to a child, means:
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