Surrogacy – a word recently dragged kicking and screaming into the limelight by the pop-couple Kardashian-West. What caused the outcry? Kim’s decision: the mother of two would not bear their third child herself. Worldwide the topic of surrogacy sparks debate. Leaving ethics aside for a moment, should the legal aspects of surrogacy be influenced by social, political or geographical factors?
Surrogacy is not a concept or practice foreign to South Africa. The Children’s Act of 2005 prescribes that all surrogacy arrangements are to be governed by a “surrogacy motherhood agreement” (SMA), the validity of which must be confirmed by a court. A recent decision handed down by the Johannesburg High Court highlighted a few requirements for such confirmation. The judgment arguably opens the door to social, political and or geographical discrimination.