Performing IVF for surrogacy before confirmation of the surrogacy agreement by the court: a critical analysis of recent case law in South Africa

The regulation of surrogacy in South Africa centres on a scheme of judicial confirmation of surrogacy agreements before the start of the surrogate pregnancy. If such confirmation is granted by the court, actions taken in the execution of the surrogacy agreement are lawful, and the agreement itself is enforceable. Against this background, the question has arisen: is it lawful to perform in vitro fertilisation (IVF) before confirmation of the surrogacy agreement? This is a salient question: In circumstances where egg retrieval needs to take place in anticipation of surrogacy, and where sperm is available but where the surrogacy agreement has not (yet) been confirmed, there are significant clinical advantages to first creating embryos through IVF before cryopreservation—rather than cryopreserving the eggs. However, in the recent case of Ex Parte MCM, the court held that it is unlawful to perform IVF in anticipation of surrogacy where the surrogacy agreement has not (yet) been confirmed. The correctness of this decision is comprehensively analysed with reference to the two main statutory instruments that are relevant to the topic: the Children’s Act and the Regulations relating to the Artificial Fertilisation of Persons. This article concludes that Ex Parte MCM interpreted the Regulations incorrectly, and that on a proper construction of both the relevant statutory instruments, the law does not prohibit IVF in anticipation of surrogacy where the surrogacy agreement has not (yet) been confirmed.