A "Parenting Licence" Granted by One’s Existing Children? Critical Analysis of the Judgment in Ex Parte JCR 2022 5 SA 202 (GP)

Abstract

In Ex parte JCR 2022 5 SA 202 (GP) the Pretoria High Court per Neukircher J seeks to introduce new requirements for all surrogacy agreements in South African law. The court considered the psychological impact of surrogacy on the children of both the surrogate parents and the commissioning parents and the need to put in place procedures ‘for preparing them for this process [of not bringing the surrogate baby home]’ or ‘for a new addition to their family’, respectively. The court ordered the mandatory psychological assessment of the existing children of the surrogate parents and commissioning parents. A report emanating from such an assessment would ostensibly assist the court in determining the best interests of the existing children of the parties to the agreement. We argue that the psychological evaluation of the existing children of the parties to a surrogate motherhood agreement fundamentally upsets the balance between the interests of the parties involved in the surrogacy process. In fact, it shifts the balance of power almost entirely into the hands of the existing children, such that they may be said to decide whether their parents allowed to have any more children. We argue that the court’s interpretation that such assessments would be in the best interests of existing children, is based on a fundamental misunderstanding of the court’s duty in this regard. The new assessment requirement is more likely to undermine these children’s interests, to violate the commissioning parents’ constitutional rights to dignity and equality, and their rights to reproductive autonomy, privacy, and access to reproductive healthcare.