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 the Pretoria High Court sought to introduce new requirements for all surrogacy applications in South Africa. 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 mother  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 surrogate motherhood agreement. The position taken in this article is that the  mandatory psychological evaluation of the existing children of the parties to a surrogate motherhood agreement fundamentally upsets  the balance between the interests of the persons affected by 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 are allowed to have any more children.  The court's position that such psychological evaluations would be in the best interests of existing children is based on a  misunderstanding of the court's duty in this regard. In fact, the mandatory psychological evaluation requirement is more likely to  undermine children's interests. Furthermore, the mandatory psychological evaluation requirement violates the commissioning parents'  constitutional rights to dignity, equality, reproductive autonomy, privacy, and access to reproductive healthcare.