 My presentation is based by and large on the chapter that appears in the book that you will receive in your bags. If you want to read more and avoid asking questions, then you can just read the chapter on surrogacy in South Africa. I think that the surrogacy situation in South Africa is very much the epitome of a regulatory framework. So what I will be doing is a brief historical introduction and a brief consideration which will also permeate some later slides of the impact of that history on the regulation of surrogacy in South Africa. The basic characteristics of how surrogacy is regulated in the Children's Act of 2005. Some of the essential requirements for a valid surrogacy agreement and the role of judicial oversight and then some current developments in conclusion. So the historical overview dates to 1987 when Corrin George Ferrera gave birth to her daughter's triplets. She was in other words both the gestational mother of the child and the grandmother of the child, which caused obviously front page Sunday Times coverage for some weeks as people were deeply concerned about the ethical moral etc, not to mention legal implications. And this led to an appointment on the South Africa Law Reform Commission to do a report on surrogacy which was completed in 1990. The timelines are quite important. This is a pre-constitutional era for South Africa. So once the interim constitution came into being in 1994, Parliament was not particularly happy or comfortable with simply adopting the Law Reform Commission's recommendations willy-nilly and then appointed an ad hoc Parliamentary Committee to also investigate customary forms of surrogacy as practised in some of the indigenous peoples, among some of the indigenous peoples of South Africa. This resulted ultimately in the final report of the South African Law Reform Commission at about around that time. It did not result in any legislation and ultimately, and I think my view was simply just tacked on to the Children's Act when that process had been completed. The Children's Act was a very dense piece of legislation, very widely consulted, not Project Committee at some point, chaired by Judge Linda Van Heerden herself, which did not debate surrogacy at all. We debated many other things, foster care, parental responsibilities and rights, and I think it was actually the researcher at the Law Commission who saw that there was no demand anymore for surrogacy legislation. So he simply added just Chapter 20 to the Children's Act. And that explains a number of things. The legislation had been developed to not have a children's rights lens because children's rights did not exist in the pre-94 era. Some of the criteria for the validity of the surrogate motherhood agreement go right back to the 1990s without any additional thought being given to updating them. And there are no regulations to this particular chapter of the Children's Act because it was not provided in the legislation that the Minister of Justice for Health was empowered to make regulations. There was a lack of attention to anybody other than the surrogate mother, the commissioning parents and the child. So there was no attention paid to any of the other actors in the arrangements such as intermediaries and clinics. We do not have a regulator or central authority because that was not provided for. And strangely, despite the work done by the ad hoc parliamentary committee to investigate and document customary forms of surrogacy, there is absolutely nothing in the Act about customary forms of surrogacy. So that is the historical overview. Now the characteristics of the legislation as it stands is that surrogate motherhood agreements must have preconception confirmation by a high court. So in our structure, of course, high courts are quite close to the top of the pile and it is so quite expensive. It requires the approval that attorneys are prepared surrogate motherhood agreements and that advocates of varices, as you would call them in England, are also involved in presenting the papers before the high court, which means that essentially surrogacy is a preserve of the wealthy since high courts are inaccessible to the vast majority of the population who are not well off. We don't have any idea of the numbers. We have a high court in every province in the country and in some provinces there's more than one high court. So there's no single database of records. But we believe, this is a guess, that the numbers annually are likely to be in the hundreds rather than in the thousands. Although my colleagues in the room have the best surrogacy expertise in the room present today, we will believe that there should in fact be some attempt to collect national data and to see if there are trends that emerges to which courts receive the most applications if there are reasons why that occurs or not. Essentially, only altruistic surrogacy is permitted and expenses must be paid, may be paid, but only expenses, no commercial surrogacy. I know that there's a dispute about the meaning of those words, but we'll see how it's worked out in practice. No commercial surrogacy is permitted. The essential requirements is that there should be no surrogacy tourism. So the commissioning parents should be domiciled in South Africa, unless there are exceptional reasons for deviating. That's in relation to the surrogate only, for instance, the system is living abroad. The applicants must be domiciled in South Africa. The agreement must be drawn up in South Africa. The parties must be infertile or unable to give birth. In the first constitutional case that we had on the issue, which I'm not going to go to in detail because it is explained fully in my chapter, the genetic link of one of the commissioning parents at least is required. Just by way of backdrop, commissioning parents may be same sex. They may be heterosexual. They may be single. We do have a very strong constitutional equality provision, which forbids discrimination on the grounds interalial of sexual orientation, marital status, and so forth. So the genetic link of 140 is required. There was a case in which Robin Freeman was involved in, I think, as well as a centre for child law, represented by Karaba Ozab. In AD, there was a list of social developments where the applicant was unable to provide a genetic link. She was a single person. She was successful in the High Court in having that declared unconstitutional as a violation of her various rights. One of the main ones was the equality rights. But the constitutional court upheld the validity of the genetic link requirement on grounds that the child's best interests, basically summarising now, were dominant and that was in the child's best interests for various reasons to have a genetic link to the commissioning parent. And then there are various requirements in the act of detail that the surrogate and the commissioning parents must be assessed to be suitable for the tasks that they are involved in. And this is done by way of psychological and social background reports that must be tabled at court. Just to mention a couple of cases here that have surfaced. Ex parte K was a case in which the surrogate model was deemed not to be a suitable person for the purposes of confirmation of the agreement. She was 19 years old and she had already had her first child at the age of 16 and a subsequent one she came from very, very poor socioeconomic circumstances. And she obviously was only 19 years old already with key children. She dropped out of school and the court was under view that she had made already some quite bad choices in her life and that she was not suitable. This was not the only reason why confirmation did not occur, that she was not suitable to be a surrogate parent in this case. A second case in which the confirmation was rejected on the basis of lack of suitability of the commissioning parents this time was that the partners were in the same sex relationship but the one partner was not prepared to come out and more was prepared to share a household with the other partner because it was prejudicial to his professional practice and the court was unhappy with the fact that this would not be in the interest of the to be born child to be raised in a non-household where one parent was not prepared to publicly acknowledge his role as the parent of the child. The court did say this was not intended to be homophobic. The other applicant could apply singly to be a commissioning parent or else the second parent could come out and agree to be publicly known as the father of the child to be born. These cases are illustrated with the facts that I think that I will come back to this, that the courts do go behind the papers and look quite carefully at suitability when they assess this. Consents are required including consents of the partners of the surrogate and in the very first case ex parte WH arrived back in 2010. The court laid down a whole lot of rules about the nature of the disclosure, financial disclosure to be made in relation to payments. This is a very, very detailed judgment and in particular no lump sum. It has to be actually itemised how much for this maternity dress and how much for that doctor's bill and so forth, no lump sum because it could be a disguise for commercial surrogacy. WH also required information about in previous surrogacy arrangements and what happened to them and also that there'd be a peace clearance certificate produced. So these were not in the statute but they were developed by the judiciary. The Act specifies that no artificial fertilisation may take place before the confirmation by a court and also not after 18 months post the confirmation by a court and this is also a bad defense. Now there were some difficulties in the case in 2014 where the parties approached the court when the surrogate was already 33 weeks pregnant they'd had a verbal agreement, apparently they had a previous incident where the surrogacy miscarried and they were so worried about it this time that they didn't get pre-approval and the judge had to go through all kinds of legal hygiene to try and confirm what was clearly an illegal surrogacy agreement in the best interest of the almost to be born child that was some very strange legal reasoning. It's also an offense to make it known that a person is willing to be a surrogate but if you go and google surrogacy South Africa, which I do sometimes, like two weeks ago, you will see surrogates advertising their services on the internet. The legal effect is that the child that is born is legally the child of the commissioning parent from birth, unless as Judge Fahmian pointed out in a question earlier today, there is a biological link to the gestational mother and then she has a 60 day cooling off period. Although in practice my understanding from the fertility clinics is that they do not approve of surrogacy arrangements where there is a biological link to the gestational mother. Where the surrogacy agreement is just for some reason not complied with the act, the child remains legally the child of the surrogate. Now section 301 of the act lists to authorise payments, which you can read on the slide yourself, insurance, loss of earnings, expenses related to pregnancy and birth, confirmation of the surrogacy agreement itself and so on and so forth. Two recent cases exporter HPP involved a surrogate facilitator who was part of the surrogate agreement and when the court probed a bit further about what is the surrogacy facilitator, it appears that she as a person who herself had been a surrogate mother, she had given birth six times in the previous 11 years and that she was uniquely placed to provide counselling and support to surrogate mothers to assist them to remember to take their medication and so forth. The court was having none of this, it said this is not authorised by the act. The act is very clear about psychologists and lawyers and doctors and no surrogacy facilitators and so the part of the agreement that authorised payments to her, she was employed by a clinic, was excised from the agreement. Ex parte K is the case I referred to earlier in the 19-year-old, there the court was concerned that their lump sum amounts per month, even though in US dollar terms would probably seem to you to be quite meager, that the lump sum payments to her per month seem to be advised form of pain surrogacy, commercial surrogacy, given her very poor and adverse economic circumstances and so the court refused to confirm it also on those grounds. Again illustrative of the fact that courts are prepared to go quite deeply into the papers to pick up if they are disguised commercial aspects. I come to the role of judicial conduct in Haating, which is obviously with the most surrogacy agreements would probably be there because it's a populist province. The judges have developed a practice manual. I mentioned that there's no simple database but there are guidelines from the court in Ex parte WH which also apply only in that province but are probably used by judges in other provinces from time to time as well. My chapter talked a little bit about the possibility of international surrogacy because Ex parte WH was picked up that the applicants were domiciles in Johannesburg but one was a Dutch citizen and one was a Danish citizen and this was their second surrogacy agreement in a period of nine months. So this did look a little bit like international surrogacy. I know personally of a child that was born a month ago to two Namibians who were not domiciled in South Africa and this was done legally through a South African court which means obviously that court didn't look too closely at the domicile requirements because they domiciled in Bintuck. And then there's also a case I know about that may be known to people in the room involving two children which the surrogate mother now wants back. Those children are in the UK that were born in South Africa. It looks suspiciously like international surrogacy and the mother in this case was also the biological mother of the children but the case is sub-UDK in the UK so I can't talk about it anymore and I don't know anything about it except to say that it does look like international surrogacy and there's certainly a couple of websites if you Google surrogacy South Africa that do seem to indicate that services are available to international clients which is probably illegal. So current developments are coming to my conclusion there is a South African law reform current investigation into the right of the child to know those of her genetic origins and you can read that report on the website of the South African law reform commissions. Section 41 of the Children's Act does allow child to access genetic origin information after the age of 18 but not necessarily related to the identity of the donor so it's very limited and quite old-fashioned kind of medical information. Then we have a whole long process that started in 2013 of amending the Children's Act. Lots of amendments required due to faulty cut and pastes, changed circumstances, I'm not going to go into any of them other than those that relate to surrogacy and the version of the amendment act that I'm referring to is the February 2019 version of the Gazeta version of 2018 November which apparently the Department of Social Development has now jettisoned in favour of its own version but it firstly cures the problem that the ordinary regulations because it appows the minister to make regulations second it tightens up on some eligibility criteria requiring now in line with ExpoTWH indication of the circumstances under which the commissioning parents and the surrogate mother meet. The courts are very careful to protect the idea that you can't go and advertise surrogacy services nor can you get any money for introducing the surrogates to the commissioning parents. Indication of the circumstances of the surrogate mother including her financial position concern about exploitation and also about commercial surrogacy floating under the radar copies of all agreements between the surrogate mother and intermediary or any other person who is involved in the process so we have seen since the initial preparation of the legislation way back in the 1990s how important the intermediaries and the clinics have become and so therefore their involvement needs to be given much more heightened attention and then full details and proof of payment of compensation for any services rendered as contemplated. This will all now be in the principal legislation not in regulations. And then there are new health and age suitability requirements that doesn't specify what age but it was of some concern in the AB case in the concourt that by the time the applicant got to the constitutional court she was already in her late 50s there's no requirement of health and age for the surrogate but obviously the court will be happy with the 19 year old in the export AK and one website our consultant says that the maximum age of surrogates that they will consider is 42. And the High Court will finally get the power to dispel to the genetic link requirement on good cause shown so it will open the door for persons like AB to be able to access surrogacy if they are able to show that there is a good reason for that. I conclude that in the Children's Act's amendment there is no intention to deviate from the present position that it is the High Court that will do the confirmation to bring it to a lower court as is happening in other areas of the Children's Act like guardianship which was also reserved for High Courts only that is now being devolved to the lowest level which will be the Children's Court. With surrogacy it was thought it's not needed to devolve it to the Children's Court level and rather keep it at the High Court level and continue to engage with those judges that are interested in the field of surrogacy and there are quite a few to capacitate them better to exercise the judicial oversight role that they are in fact currently with them. Thank you.