The first point that gay parents seem to bring into contention is the perception of gender roles. For years women have been expected to be typical housewives, looking after children and ensuring a well-kept home. Men, meanwhile, have typically been the breadwinners, and have naturally drifted away from emotional attachment with children. However, the concept of biological motherhood needs to be entirely discarded by gay parents. Traditional concepts of ‘women-only’ activities reserved for mothers need to be undertaken by gay men in order to responsibly bring up their children. And if gay men can do it, why not heterosexual fathers?

If men take over some of the responsibilities associated with motherhood, then both genders will stand a lot to gain from such a change. For one, fathers will spend a lot of additional time with their children, and they can therefore develop their relationships between father and child. Women will also be afforded the time to participate in the workforce, and they will not have the added responsibility of participating in ALL aspects of child-rearing. Instead child care will be a shared responsibility by both parents.

The articles made a reference to the fact that gay marriages, and childcare undertaken by a gay parents, is often believed to threaten the typical heterosexual relationship. There can be nothing farther from the truth. Families unified by the relationship between gay couples often deliver lessons that can be learnt by all. The most important lesson they can teach is that parenting is a shared responsibility for both parents, and that in cases regarding child custody both the father and mother should have equal rights regarding childcare and contact. If you require a specialized Child Custody Attorney with years of legal experience, contact Ivan Zartz Attorneys today.

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The Pretoria high court overturned the legal requirements of parents who wish to apply for surrogacy. Where couples were required to provide at least one gamete from one of the proposed parents required for artificial insemination, now neither parent is required to do so if they are unable to provide a gamete. The revision takes into consideration that there are many couples where neither proposed parent is able to have children. Therefore no genetic lineage is required in the surrogate application.

Until this point there have been many distressed couples who have been looking for ways and means of having children, but to no avail. The requirement for a genetic link between child and parent was defended by the conviction that a link safeguards the concept of family. The court however believes that this would be discriminating against those families with adopted children. By no means is a family with adopted children less equal than that with children naturally conceived.

The court and supporters of the new ruling believe that this represents the perfect opportunity to give the gift of life to those who are unable to have children at all. One portion of society that can benefit most from this ruling are those unmarried women and men who are infertile, and wish to be the proposed mothers or fathers in a surrogacy case. The ruling, however, will make its way to the Constitutional Court to determine whether or not it becomes legislation.

For more information on surrogacy in South Africa, make sure you contact Ivan Zartz Attorneys. Ivan Zartz and his team of legal specialists are experienced in providing the necessary legal assistance to those interested in executing a surrogacy application.

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The legal aspects regarding surrogacy leans heavily on the reliance of an approved High Court application. The application toward the High Court requires a collection of documentation that, unfulfilled, will mean the end of the surrogacy process.

The initial stages of the application requires the surrogate mother as well as the intended parents to go through a number of medical and psychological reports. The psychological report, made by psychologists, will determine if the intended parents are fit to look after a child, and if the surrogate mother can adequately bare the mental trauma of pregnancy and childbirth. A medical report will also establish if the surrogate mother is able to have children, while a report must also be made on the intended parents’ inability to have their own children.

There are also reports that need to be issued by social workers that deem whether or not intended parents are fit to raise a child, given the intended parents’ lifestyle, living-conditions and financial situation.

The most important part of the High Court application is the surrogate agreement between the parents and the surrogate mother. The agreement has to fulfill the requirements as stipulated in Chapter 19 of the Children’s Act, Surrogate Motherhood.

This Chapter of the Children’s Act outlines all the requirements of both parties involved in the surrogate agreement. The Chapter outlines the requirements of the genetic origins of the child, and where the gametes involved in insemination may be derived. This part of the Chapter also points out requirements such as, if only the gamete from a single intended parent can be used, that there is proof of the other parent being unable to provide a gamete. The Chapter lays down the rules pertaining to the handing over of the child after birth. It also outlines the effects of termination of the surrogate agreement, as well as the termination of the pregnancy.

The High Court and the Chapter ascertains the actions that are prohibited  on the part of both surrogate mother as well as intended parents, such as the prohibition of payment etc.

It is only after these guidelines are provided, an the correct documentation approved, that the High Court accepts an application. It is at this stage that the High Court will determine the process of insemination and the guidelines following from pregnancy to the handing over of the child.

If you require legal representation and assistance with any case involving surrogacy, make sure that you contact Ivan Zartz Attorneys. Ivan Zartz Attorneys specialise in all cases and legal matters involving surrogacy in South Africa.

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However, there are issues regarding surrogacy. Problems of surrogacy involve ethics, medical complications and problems regarding the surrogate mother.

• Ethical issues include the religious implications. Many Christian denominations believe that surrogacy is immoral, and in the Islamic faith surrogacy is banned altogether. Some other religions allow surrogacy, but only if certain conditions are met.
• Many people believe that surrogacy is akin to the selling of the babe. Surrogate mothers  are usually believed to be desperate women, and they can be victims of prejudice in their societies and families. The issue of contact between birth mothers and the child are also highly controversial, as some parents do not believe that their children should ever meet their biological mothers.
• The health of the biological mother is also a risk as they are prone to infection or the chances of twins and triplets. Artificial insemination also leads to many miscarriages, and this will affect both the parents and the biological mother.
• Intended parents also stand the risk of losing their child due to the behaviors of biological mothers as they go about their daily lives. Some mothers drink, and on the rare occurrence may even take drugs that can affect the baby’s health.
• Some surrogate mothers will choose to keep their child after their pregnancy. In this case either the mother or the intended parents will be grievously upset by the choice made in court.

Be sure to read our next blog concerning the legal problems involved in surrogacy. For any issues, contracts or grievances concerning surrogacy in South Africa, be sure to contact Ivan Zartz Attorneys. Ivan Zartz Attorneys also specialize in other cases regarding family law, such as divorce, care and contact, and family mediation.

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This follows a case whereby an employee, who had entered a civil union a year previously, applied for the four months maternity leave after the surrogate mother of which they shared a surrogacy agreement gave birth. The employer initially denied the employee the maternity leave, instead offering four months special unpaid leave.

The employee, who had agreed with his partner to take the role normally occupied by the birthmother, refused such terms. The employer then offered the employee 2 months paid leave before 2 months special unpaid leave. It was at this stage whereby the matter went to court. 

The employer claimed that the Basic Conditions of Employment Act only made provisions for mothers in cases of maternity leave, and that the leave has been granted in order for the mother to regain her health following the bodily trauma following pregnancy. The employee’s case was that this standpoint refuses to identify the child’s needs and rights in accordance to the Constitution; that of a child’s right “to family care or parental care”.

The Labour Court found that there should be no reason to deny the employee the required paid maternity leave. This highlights the fact that policy will need to be reviewed with regards to surrogacy and the ‘maternity’ leave required by at least one parent, whether female OR male. It also shows that Labour Court may come to the assistance of those parents who are fostering new born children, and that employers must ensure that these rights are endorsed if they hope to proactively avoid such legal processes.

For more information regarding surrogacy, or if you require legal assistance on matters concerning surrogacy, make sure that you contact Ivan Zartz Attorneys today!

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A standing minimal fee of R1500 is required for a consultation at our offices. We DO NOT provide free telephone consultations either. Telephone consultations may be made, but they will be charged accordingly.

Many clients question the charge and label it as exorbitant, but what exactly are you paying for at Ivan Zartz Attorneys?  Ivan Zartz is an industry-leading attorney, with many years of experience. His focus within matters of child custody, dispute resolution, divorce, surrogacy, debt collection and insolvency mean that his advice and council is highly regarded and well-sought. Ivan Zartz is virtually a household name in legal circles within South Africa.

You will also be paying for the services of Ivan Zartz Attorneys’ highly-capable and accomplished team. It is this team of bright and young individuals that allows Ivan Zartz to execute such quick turnaround times regarding clients’ needs. The administration team also helps ensure prompt communication with clients so that Ivan Zartz and his attorneys can continue to achieve desired results.

Please make sure that you are able to pay the required R1500 consultation fee the next time you make an inquiry toward consultation. Not only will you be saving us crucial time during office-hours, but you will be saving yourself the trouble too.

For any additional information regarding matters of child custody and/or debt collection, or if you require a debt collection attorney/child custody attorney within South Africa, contact Ivan Zartz Attorneys today!

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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.

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1. 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.

2. 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;

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

4. 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;

5. 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;

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

7. 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.

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

9. A clearance certificate by the police of the commissioning parents.

The post Surrogacy Matters: Practical Legal Advice for Commissioning Parents appeared first on Ivan Zartz Attorneys.

1. The commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible;
2. 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;

3. 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.

4. 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;
5. 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”.

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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:

1. All factors as set out in the Act, together with documentary proof where applicable.
2. 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.
3. A report by a clinical psychologist in respect of the commissioning parents and a separate report in respect of the surrogate and her partner.
4. A medical report regarding the surrogate mother.
5. 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.
6. All agreements between the surrogate and any intermediary, or any other person who is involved in the process.
7. Full particulars, if any agency was involved, any payment to such agency as well as an affidavit by that agency.
8. 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:

1. Any party who seeks to bring an application will follow normal procedures for the matter to be issued by the Registrar.
2. 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.
3. 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.
4. 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.

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