Abstract

HOLNESS, W et al. A "Parenting Licence" Granted by One's Existing Children? Critical Analysis of the Judgment in Ex Parte JCR 2022 5 SA 202 (GP). PER [online]. 2023, vol.26, n.1, pp.1-32. ISSN 1727-3781.  http://dx.doi.org/10.17159/1727-3781/2023/V26I0A14694.

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.

Keywords : Surrogacy; best interests; reproductive health rights; equality; dignity; privacy.

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