Abstract
South Africa has developed domestic legislation governing all surrogacy matters within the country. These provisions are contained in Chapter 19 of the Children's Act 38 of 2005.
 In Ex parte MS; In re: Confirmation of Surrogate Motherhood Agreement 2014 2 All SA 312 (GNP), the commissioning parents did not adhere to the requirement provided by Chapter 19. The parties to the (initially informal) surrogacy agreement authorised the artificial fertilisation of the surrogate mother prior to the confirmation of the surrogate motherhood agreement by the court. In considering the best interest of the resultant child, the High Court decided to ratify the inadequate surrogate motherhood agreement.
 This discussion aims to establish whether the court's judgement in Ex parte MS; In re: Confirmation of Surrogate Motherhood Agreement 2014 2 All SA 312 (GNP) was in accordance with the provisions of current legislation and case law. It furthermore aims to answer two primary questions: firstly, whether adjudicators should make use of the best interest of the child when ratifying inadequate surrogate motherhood agreements; and secondly, in what manner the court should go about implementing the best interest of the child when validating inadequate surrogate motherhood agreements.
 It is submitted that courts should refrain from applying the best interest of the child as a constitutional right in inadequate surrogacy matters where the child is yet to be born alive, in accordance with the Digesta Texts. Parties to the invalid agreement should rather be instructed to make use of a section 22 parental responsibilities and rights agreement, a section 28 termination agreement, or adoption as provided for by chapter 15 of the Children's Act.
 
Highlights
In Ex parte MS; In re: Confirmation of Surrogate Motherhood Agreement 2014 2 All SA 312 (GNP), the commissioning parents did not adhere to the requirement provided by Chapter 19
For the confirmation of a surrogate motherhood agreement in accordance with section 292(1)(e) of the Children's Act was heard in chambers
The first pertained to the competency and discretion of the court to confirm surrogate motherhood agreements that do not meet the requirements contained in chapter 19.12 The second pertained to the proper interpretation of chapter 19 and the protocol that should be followed in future cases that present similar facts
Summary
In Ex parte MS the High Court was approached by three applicants. The first and second applicants were the commissioning parents and the third the surrogate mother. The ex parte application brought before Keightley J. The legal provisions according to which the application was brought before the court, being s 292 read together with s 295 of the Children's Act. for the confirmation of a surrogate motherhood agreement in accordance with section 292(1)(e) of the Children's Act was heard in chambers.. The court essentially aimed to clarify what the requirements were for parties who entered into oral surrogate motherhood agreements with the further intent to approach the High Court for the confirmation of those agreements.. Having received the requested written submissions from Ms Retief, the applicants' counsel, and after hearing the oral submissions, Keightley J granted an order on 1 November 2013 which resulted in the confirmation of the surrogate motherhood agreement entered into by the applicants after the artificial fertilisation of the surrogate mother had taken place..
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