- The court confirmed a surrogate motherhood agreement involving a husband, his first wife, and his second wife, all within a customary marriage.
- The court found that modern surrogacy is compatible with customary law when it serves the best interests of the child.
- The judgment recognises that customary law evolves alongside social and medical changes.
Two wives, one unable to have children and the other willing to carry a child for her, stood side by side in court and changed the legal landscape for families living under customary law.
Their surrogacy agreement, approved by the High Court in Middelburg, marks a powerful moment for women’s agency, family unity, and evolving traditions in South Africa.
Acting Judge HF Fourie granted the application, finding that the proposed arrangement complied with the Children’s Act and did not offend customary law. The identities of the applicants remain protected under a confidentiality order granted by the court.
Family sought court approval
The first and second applicants, who are the commissioning parents, married according to Zulu customary law in 2013 before concluding a civil union in 2016. The third applicant later entered into a customary marriage with the first applicant in 2024 and agreed to act as the surrogate mother.
The court stressed that it was not required to determine the validity of the marriages. Instead, the relevant issue was that all three applicants regarded themselves as members of the same family and sought approval of a surrogate motherhood agreement under Chapter 19 of the Children’s Act.
The evidence showed that the first applicant has children from previous relationships and twins with the third applicant, while the second applicant is permanently unable to have children. According to the affidavits, the family shares parenting responsibilities and enjoys a close, supportive relationship built on trust, mutual respect and cooperation.
Because of the unique family structure, Judge Fourie closely examined the expert evidence before deciding whether the proposed surrogacy would be in the best interests of the child.
The judge said the clinical psychologist’s report was “not only compliant with what was necessary, but also helpful and insightful” because it examined the relationships between the parties and evaluated the proposed surrogacy within the broader context of customary law and tradition.
Psychologist found stable family environment
The psychologist concluded that the intended father treated both wives with equal dignity and respect, that there was no evidence of jealousy or competition within the family, and that the first wife had freely and voluntarily consented to the surrogacy arrangement.
The report also found that all existing and future children would be treated equally and that the wider family and community would provide emotional, cultural and practical support.
It further concluded that the intended surrogacy arrangement “aligns with the values of Ubuntu, and the principles of fairness and equality within a customary marriage.” The report noted that the two women referred to one another as “sister wife,” reflecting the stability of the family relationship.
Court examines customary law
Judge Fourie said the central legal question was whether confirming the surrogacy agreement would conflict with customary law or undermine the best interests of the child as required by the Children’s Act. After considering the evidence and expert submissions, the court concluded that it would not.
The judge observed that customary law is not static. “The evolution of Customary Law cannot stagnate without considering that the eventualities of life force parties to be open-minded when Customary Law is applied,” Judge Fourie said.
The judgment explains that customary law has historically developed different ways of addressing infertility, including customary adoption and the introduction of another woman into the family to bear children. Judge Fourie held that modern surrogacy may be understood as an evolution of those customary practices where appropriate.
“To find that the doors of parenthood ought to be closed to an individual or a couple simply because they are customarily married or live their lives according to certain customs and traditions would be nothing short of a travesty of justice,” the judge said.
The court also endorsed the opinion of Professor Boitumelo Mmusinyane, an expert in customary law, who explained that African customary law understands the best interests of a child within the broader context of the family, lineage and community rather than purely from an individual perspective.
Children’s interests came first
Judge Fourie found there was no evidence that the proposed arrangement offended any of the requirements contained in section 295 of the Children’s Act. The judge said the child would be born into a supportive family environment.
“On the facts before me, the proposition is that the child or children to be born will be born into a close-knit, loving family and community where they will receive love, attention, guidance, and support from a broader family and society,” Judge Fourie said.
“Together with safety, security, and proper care, these are some of the most important elements each child could ever be entitled to.” The court concluded that confirming the agreement would not offend customary law and that doing so was in the best interests of the child.
Order granted
The High Court confirmed the surrogate motherhood agreement and authorised the artificial fertilisation procedure. The court further ordered that any child born under the agreement will, from birth, be regarded in law as the child of the first and second applicants, who will hold full parental rights and responsibilities.
Judge Fourie also declared the proceedings confidential, directing that the court file be retained by the Chief Registrar and prohibiting publication of information that could identify the applicants.
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