Articles By Ivan Zartz Archives - Page 2 of 4

01 Jun

Surrogate Parents Need Legal Permission or They Risk Losing All Their Rights to Children

Published in The Times – Tuesday, May 19 2015 By Rosemary Bennett – Social Affairs Correspondent

A senior judge has warned of a surrogacy “ticking time bomb” in the UK, with large numbers of parents failing to obtain legal permission to take care of their new children.

Mrs Justice Theis said that there were up to 2,000 babies born to British or overseas surrogate mothers each year on behalf of couples here, but only “a few hundred” obtain the parental order that they need to ensure that the child is legally theirs.

If a parental order is not obtained the child remains the responsibility of the surrogate mother.

“There are a very limited number of parental orders which come to court each year. My concern is not for the people seeking parental orders but for those who are not making applications. It is a ticking legal time bomb,” she said.

“If no steps are taken to regularise the legal relationship between the intended parents and the child by way of an application to the court, the surrogate remains the child’s legal mother and retains the child’s legal mother and retains parental responsibility.” She said she was also concerned about the psychological impact on children who discovered that their “settled” family situation was in fact legally vulnerable.

She predicted particular problems in the event of the death of one parent, separation and divorce, or when the child’s passport needed to be renewed. In the absence of a parental order, the child would be entitled to a claim on the estate of its surrogate mother, she said.

The number of surrogacy arrangements is rising STEADILY IN Britain, with 95 per cent now being born overseas.

Mrs. Justice Theis, one of three High Court judges who hears applications for surrogacy parental orders. She was speaking at a symposium on international surrogacy organised by the International Association of Matrimonial Lawyers in London.

She recently ruled in the controversial British case of a couple in their 60’s who had twins born twins born to a surrogate in Ukraine. The surrogate mother disappeared during the conflict with Russia and the couple were unable to prove that she was really willing to give up her babies. Mrs. Justice Theis ruled that the couple should keep the babies.

Fiona Kendall, a solicitor at Clarion, a law firm in Leeds, said that agencies should explain the legal steps to their clients. “It would help if fertility clinics made clear this was something that was part of the process,” she said.

Cafcass, The children’s legal service, said that it dealt with only 241 parental order applications last year, a fraction of the children born to surrogates for UK couples. Currently only couples married, civil partners or in long term relationships can have a surrogate child. Mrs Justice Theis said that she would shortly be hearing an application for a parental order from a single woman, a test case for the law.

27 May

Surrogacy Matters: Practical Legal Advice for Commissioning Parents

The affidavit of a surrogacy agreement should contain the following:

All factors set out in the Act together with documentary proof where applicable. The affidavit should contain the information on how the commissioning parents came to know the surrogate mother and why she is willing to act as a surrogate for them. The surrogate mother’s background as well as her financial position should be investigated and set out in the affidavit. Furthermore a comprehensive report by psychologist is essential to assess the suitability of the surrogate mother. This should deal in particular with her background, psychological profile and the effect that the surrogacy and the giving up of the baby will have on her. Full medical reports should also be obtained regarding her physical condition to indicate whether surrogacy pose any dangers for her and/or the child. In our view the medical report should deal with the HIV status of the mother, as well as any disease that could be transferred from her to the child in order to protect the child and to allow the court to exercise its discretion properly in confirming the agreement.

Whether there have been any previous applications for surrogacy; the division in which the application was brought, whether such an application was granted and/or refused. If it was refused the reasons for the refusal should be set out;

A report by a clinical psychologist in respect of the commissioning parents and a separate report in respect of the surrogate and her partner;

A medical report regarding the surrogate mother which must include her physical condition to indicate whether surrogacy pose any dangers for her and/or the child. In our view the medical report should deal with the HIV status of the mother, as well as any disease that could be transferred from her to the child in order to protect the child and to allow the court to exercise its discretion properly in confirming the agreement;

Details and proof of payment of any compensation for services rendered, either to the surrogate herself or to the intermediary, the donor, the clinic or any third party involved in the process;

All agreements between the surrogate and any intermediary or any other person who is involved in the process;

Full particulars, if any agency was involved, any payment to such agency as well as an affidavit by that agency containing the full particulars regarding that agency should be revealed. An affidavit by the agency should also be filed containing the following:

(a) the business of the agency,

(b) whether any form of payment is paid to or by the agency in regard of any aspect of the surrogacy,

(c) what exactly the agency’s involvement was regarding the:
(i) introduction of the surrogate mother,
(ii) how the information regarding the surrogate mother was obtained by the agency and

(d) whether the surrogate mother received any compensation at all from the agency or the commissioning parents.

Whether any of the commissioning parents have been charged with or convicted with a violent crime or a crime of a sexual nature

A clearance certificate by the police of the commissioning parents.

27 May

Confirmation of Surrogacy Agreement

It is important to note that a court may not confirm a surrogate motherhood agreement unless –

The commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible;
The commissioning parent or parents –

(i) Are in terms of this Act competent to enter into the agreement;

(ii) Are in all respects suitable persons to accept the parenthood of the child

that is to be conceived; and

(iii) Understand and accept the legal consequences of the agreement and this

Act and their rights and obligations in terms thereof;

The surrogate mother –

(i) Is in terms of this act competent to enter into the agreement;

(ii) Is in all respects a suitable person to act as surrogate mother;

(iii) Understands and accepts the legal consequences of the agreement and

(iv) Is not using surrogacy as a source of income;

(v) Has entered into the agreement for altruistic reasons and nor for

commercial purposes;

(vi) Has a documented history of at least one pregnancy and viable delivery;

and

(vii) Has a living child of her own.

The agreement included adequate provisions of the contact, care and upbringing and general welfare of the child that is to be born in a stable home environment, including the child’s position in the event of the death of the commissioning parents or one of them, or their divorce or separation before the birth of the child;
In general, having regard to the personal circumstances and family situations of all the parties concerned, but above all theinterest of the child that is to be born, the agreement should be confirmed”.

15 Sep

Child Participation

Respect for the opinion of children is critical in promoting children’s rights and protecting children more effectively. This is known more commonly as ‘child participation’.
Allowing children to actively contribute in essential decisions affecting them personally is of the utmost importance, instead of allowing them to merely remain as passive recipients of adult care and protection.

Children’s interests and adults interests should not be seen to intersect and therefore there is a need for children’s views to be voiced separately. Children’s views are sometimes needed in bitterly contested legal cases involving access and primary residence.

The Constitution of the Republic of South Africa guarantees that children have a right to be heard through a legal representative. Furthermore, the right is extended in terms of Section 28 (1) (h) whereby every person has a right to legal representation, which encompasses the right of children to have legal representation in civil matters. Section 35 of the Constitution further gives children the right to representation in criminal cases.

The right to participation and the recognition of children’s autonomy is also recognised in terms of the Children’s Act. The underlying principle can be found in Section 55 of such Act.

In terms of Section 10 of the Children’s Act, “Every child that is of such age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.”

However, it appears that neither Section 10 nor the above-mentioned international articles deal with when exactly a child will have capacity to express his/her views.

Useful guidelines in assessing the capacity to participate of a child

There is no clear-cut criteria such as a specific age or stage of development mentioned as a guideline, leaving all views and statutes open to interpretation, and open to the wide discretion of the court. Each formulation of this right requires a factual assessment of the specific child’s capacity by reference to his age, maturity and stage of development.

The above-mentioned assessment method is reinforced by the Committee on the Rights of the Child. They state that a child’s right to participate should not be constricted to fixed attributes. Their reasoning is that no two children are alike and they may gain maturity at different ages and stages of their lives. The main criteria to assess a child should be (i) their ability to understand and assess the implications of the matter at hand and (ii) the child’s capacity to express their views in a reasonable and independent manner.

In terms of Article 12 of the United Nations Convention on the Rights of the Child (“the Convention”) the court is required to afford a child who is capable of forming a view on a matter affecting him or her, the right to express those views.

The various ways children may choose to communicate (i.e. in a playful manner, body language or verbally), should be borne in mind by the decision maker, therefore it would not be suitable merely to assess a child’s ability to participate with regard to whether they are able to give evidence in court. Children should be approached and assessed with the utmost sensitivity bearing in mind their wishes and always putting the best interests of the child before all else. It needs to be remembered that judges are not trained child psychologists and may therefore be ill-equipped to establish what the wishes of the child truly are. In order to solve this problem I would suggest that in every matter concerning a child wanting to express their views in court, a trained expert in child psychology should be present in court to assist the judge to ascertain the true wishes of the child.

The case of F v F is a perfect illustration of the abovementioned point. It is stated at paragraph 54 thereof-

“If she found interaction with professionals daunting, it is then only logical to expect an encounter with five strange judges, ill-equipped to deal with the situation, to be thoroughly intimidating. Such an exercise would clearly not bear much, if any, fruit. It seems to me that, if either of the parties considered that there was a need to submit additional evidence in this regard, the proper route to follow would have been to have had the child interviewed by appropriate professionals, as was done previously, and to seek to place that evidence before the court.”

Are the child’s wishes always in their best interests?

From a practical point of view children are represented by a lawyer in court. These people are normally appointed by the court and they are experts in the field of what is in the best interest of the child, and they too will do a report to court after they interview the parties and the child. One must keep in mind the difficult position the Constitution and the Children’s Act may bestow on the legal representative acting on behalf of the child as they would have to decide whether to act in the best interests of the child, as stated in the Children’s Act, or whether to give precedence to their client’s wishes and thereby give precedence to the relevant Constitutional principles.

In Soller No v G and another, the court clarified that a legal representative of the child must always act in terms of Section 28 of the Constitution and “use his or her legal skills to represent the interest of the child, acting as their voice.”

The case further illustrates that the court has to assess matters in which children’s opinions are expressed very carefully.

The matter dealt with an adolescent child who approached the court for a variation of a custody order. The court assigned a legal representative in terms of Section 28(1)(h) stressing that “a child in civil proceedings may, where substantial injustice would otherwise result, be given a voice.” The Judge obtained a report from the family advocate to assist her in deciding whether custody should be awarded to the father of the child. Evidence showed that the father had instructed the child to be obstructive making the child feel as though he had to favour a certain parent. The psychologists were of the opinion that the child had made his decision due to duress or undue influence. It was held that the father was found to be a manipulative obsessive man and that it would not be in the best interest of the child to award him with sole custody. Accordingly, the court went against the wishes of the child.

Additionally, there is a universal principle which is found in most of the international instruments or conventions dealing with the rights of a child which states that the best interest principle supersedes any wishes or opinions the child may have. In considering what is in the best interests of the child, a convenient point of departure is the Constitution. Section 28(2) of the Constitution provides that “a child’s best interests are of paramount importance in every matter concerning the child”. This is a universal principle which is found in most of the international instruments or conventions dealing with the rights of a child.

The African Charter on the Rights and Welfare of the Child (“the Charter”), Article 4: Bests Interests of the Child, in subsection (1), further provides:

“In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.”

Leading Cases in the Matter of Participation

Ford v Ford [2006] 1 All SA 571 (SCA)

This case dealt with a mother who applied to remove the child born of the marriage from South Africa in order to relocate with her to the United Kingdom. The father had refused to consent to the child’s removal.

In order to come to a decision the court emphasised that the test in matters of this nature is ‘the best interests of the child’. The court had to evaluate a number of different factors including the child’s wishes where she is adequately mature to articulate her wishes.

Thanks to the evaluation of the child by child psychologists it was found that the child’s interests would be best served by remaining in South Africa and that the move would be prejudicial to her emotional and psychological well-being.

Rosen v Havenga and another [2006] 4 All SA 199 (C)

This case the dealt with a variation of a Guardianship and Custody Order, similar to the Soller case that was previously discussed. A mother applied to have sole custody. The court held that, in the circumstances, it was in the best interest of the child that an advocate be joined as the boy’s legal representative and that the father’s access and the question of sole guardianship and custody be suspended, pending the father undergoing psychological assessment and evaluation. The best interests of the child were yet again paramount o the court’s decision.

Conclusion

The views of children should not be undermined. Adults should take more cognisance of the views of children which are often communicated but fall on deaf ears. Participation by children creates better results for the child, and more importantly, promotes their fundamental human rights and best interests.
It is evident from the above discussion that the discretion to allow children to participate in matters and to promote their true wishes lies with the courts, which assess the situation together with trained child psychologists. If this is done properly children’s rights to participate will be effectively implemented. The court however is required to be very weary as to promote the best interests of the child when making a decision.
In my experience when children are drawn into these battles between divorced and/ or estranged parents it says a great deal about the obsessiveness of the parties. Normally, both parents use the child as a punching bag to vent their frustration arising from the consequences that follow the breakup of a relationship, i.e. to rid themselves of their inadequacies, anxieties and disappointments. In the leading cases dealing with children in bitter divorces, i.e. asking children to express their views in court, often leads them to be subjected to a battery of questions from psychologists. The children in the main are very scarred by the legal and psychological process they have to undergo in these cases and they themselves will probably need therapy for the rest of their lives.
The parents are never satisfied by one court’s decision and drag the children from one Court to another until their financial resources are exhausted. The wishes of children should be respected, but courts should be sensitive in using children to give evidence in contact cases.

There is no doubt, and this may sound repetitive, that it is the children who are the casualties of the war between parents.

Submitted by Ivan Zartz

11 Sep

Applying for Surrogacy – The Role of the High Court

The contents of this article refer to the case Parte WH and Others (2011) (6) SA 514 (GNP)

The agreement between a surrogate mother and the parents who are requesting this “service” (they are also called the “commissioning parents”) must be confirmed by the High Court, as it is a contract of a special kind, even “unique” if you think about the subject matter. When the surrogacy agreement is concluded, it should be remembered that the consequences which may follow could have far-reaching, and sometimes unintended, consequences.

What is often at stake is not only the physical well-being of the surrogate mother and the child to be born, but also the psychological consequences which may follow when the child is born and is to be handed over by the surrogate mother to the commissioning parents.

The High Court has a vital role to play in the confirmation of the agreement. On the one hand, it is directed to advance the spirit and the objectives of the Children’s Act, without creating or placing additional obstacles in the path of those applying to validate the agreement. On the other hand, however, the Court is the “upper guardian” of all minor children, so it cannot simply be a rubber stamp validating the private arrangements between contracting parties.

The Court’s role, therefore, must ensure that both the formal and the substantive (or practical) requirements of the Act are complied with. Invariably, applications of the kind contemplated by the Act are brought on an ex parte* basis and so the Court is invariably dependent upon the information placed before it by the Applicants. The utmost good faith is therefore expected and required of both the surrogate mother and the commissioning parents.

In satisfying itself that the absolute requirements of the Act have been met, the Court must be given sufficient information to support any of the conclusions that the applicants contend for. For example, where an applicant seeks to draw certain conclusions with regard to financial or emotional matters, or even general suitability as a parent, there should be facts to support such conclusions which a Court can interrogate. What this means, ultimately, is that the Court must be satisfied that the conclusions arrived at, are supported by facts. Accordingly vague and generic allegations in this regard that fall short of supporting a conclusion, may well render an application defective.

It would also follow, where such an application is brought on the basis of urgency, the proper grounds for urgency should be clearly set out in the papers as contemplated in Rule 6 (12) (b) of the Uniform Rules of Court.

When the High Court hears a surrogacy application and performs its judicial discretion, it may request any additional information from the parties (or any other institution), to assist it in the determination of the application.

The affidavit accompanying the application should contain the following:

All factors as set out in the Act, together with documentary proof where applicable.
Whether there have been any previous applications for surrogacy; the division in which the application was brought, whether such an application was granted and/or refused. If it was refused, the reasons for the refusal should be set out.
A report by a clinical psychologist in respect of the commissioning parents and a separate report in respect of the surrogate and her partner.
A medical report regarding the surrogate mother.
Details and proof of payment of any compensation for services rendered, either to the surrogate herself or to the intermediary, the donor, the clinic or any third party involved in the process.
All agreements between the surrogate and any intermediary, or any other person who is involved in the process.
Full particulars, if any agency was involved, any payment to such agency as well as an affidavit by that agency.
Whether any of the commissioning parents have been charged with, or convicted of a violent crime or crime of a sexual nature.

In respect of the enrolment or registration of the matter with the Court, the guidelines noted below should be followed, in order to protect the identities of the parties:

Any party who seeks to bring an application will follow normal procedures for the matter to be issued by the Registrar.
The court file must thereafter be brought to the office of the Deputy Judge President, together with a letter explaining the facts and that the application is brought in terms of section 295 of Act 38 of 2005 and requesting a date for hearing. In the event that any urgency exists in the hearing of the matter, that must be set out in the letter as well.
The Deputy Judge President will then give further directions as to how this matter shall be heard in due course, including the allocation of the judge for the hearing the matter.
Any consideration in respect of holding the hearing “in camera” (no member of the public can be present), must be addressed to the judge who is allocated to hear the matter, once the parties are notified of the relevant date of the hearing.

* ex parte is a Latin term meaning “from one party”, indicating that one of the parties in respect of the proceedings is absent.