Abstract
LL.M. (Commercial Law)
This dissertation seeks to address the rights and obligations of parties when seeking to enforce
the provisions of their underlying surrogacy arrangement. It begins with a brief outline of the
legal development of surrogacy in South Africa, setting out the position prior to the
implementation of the Children’s Act 38 of 2005. This is followed by a consideration of the
lengthy list of legal requirements for a valid surrogate motherhood agreement arising from the
requirements of Chapter 19 and South African case law. The effects of termination, the
question of consensus between the parties, the possibility of rectification, the remedies that
are available to an innocent party in the event of a breach, and whether our courts would still
uphold the maxim of pacta sunt servanda in the face of such an unusual subject matter is
discussed.
Throughout the course of the above discussions, this dissertation also seeks to establish the
legal positions of the respective parties in the event of three distinct scenarios. The first is
where the parties have entered into an informal verbal (or even written) surrogacy
arrangement. The second would be their rights and obligations in those instances where the
parties are proceeding to court with a valid surrogate motherhood agreement in place. Finally,
there is a consideration of the legal consequences that might befall the parties in those
situations where the underlying agreement suffers from some sort of material defect which
results in its invalidity, and the possible remedies that are available to cure same. There is also
a brief comparative study on the legal position of surrogacy arrangements in Canada,
followed by recommendations on the way forward, and a brief conclusion on each of the
above legal scenarios.