New Zealand High Court Stands Up For Surrogacy

27.01.2011

The dream of becoming parents became a reality for a KwaZulu-Natal couple yesterday with the birth of their child via a surrogate mother, and a High Court order confirming their parenthood.

After seven years of trying to have a baby of their own, they entered into a surrogacy agreement through an agency with a 26-year-old woman. But their dream struck an obstacle in recent months as their relationship with the surrogate mother became strained.

The couple said the surrogate mother demanded more money before she would hand over the baby. They hired an attorney to try and resolve this amicably. When this failed they resorted to an urgent application to the Durban High Court for the surrogate to give them the child when he or she was born.

The baby was born yesterday.

Also yesterday, Durban High Court Judge, Trevor Gorven, heard that the surrogate mother, from another province, had withdrawn her intention to oppose the application and they had settled the matter. He granted an order confirming the agreement between the couple and the surrogate mother.

It also read that the couple were the child’s parents and they would have full parental rights from the time the child was born.

The court was told that when the couple concluded a Surrogate Motherhood Agreement with the young woman last February, they were unaware that a new law requiring courts to authorise surrogacy agreements prior to fertilisation would come into effect in April 2010.

When they learnt of this, they had planned to apply to court for permission, with the consent of the surrogate mother. But she had refused because she wanted more money and had compiled a “wish list”.

The couple told the court they married in 2003. The wife had three children from a previous marriage. They tried to conceive, and in vitro fertilisation procedures also failed because of an irreversible uterine condition. It was then that they considered the possibility of a surrogate mother. Four years ago, they approached their first surrogate mother but fertilisation was unsuccessful. This happened again with a second surrogate mother.

The wife said their agreement was signed before the surrogate started fertilisation treatment, because clinics would not start the process without a written Surrogate Motherhood Agreement.

Artificial insemination took place in May last year, after the changes in the act came into effect.

She said their professional team had also been unaware of the new provisions prohibiting artificial insemination before confirmation by a court of a Surrogate Motherhood Agreement.

On the strained relations, the wife said communication became problematic when the surrogate demanded more money than provided as compensation in the agreement.

There was talk of a “wish list”, she said, which the surrogate did not produce.

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