A South African judge has introduced a new perspective on the legality of surrogacy – the interests of the children of the surrogate mother and also of the existing children of the surrogate couple.

In South Africa, since 2010, under Chapter 19 of the Children’s Act, commercial surrogacy is banned; a judge has to approve arrangements for an altruistic surrogacy. If the proper procedures are followed, the commissioning parents are automatically deemed the legal parents.

Judge Brenda Neukircher, of the Gauteng High Court (the province where Pretoria and Johannesburg are located) said that surrogacy affects other children in families.

According to IOL, she said that children of the surrogate mother watch the pregnancy for nine months and see her going to hospital to deliver the baby — and yet she never brings the baby home.

“Is it important that the interests of these children be protected, and, if so, how does a court do that?” she asked.

Similarly, the children of the commissioning parents suddenly are asked to welcome a strange baby into their home without the normal time of gestation to process the new arrival.

“Should a mechanism be put in place for children of surrogate parents to receive the necessary counselling and therapy to prepare them for the inevitable process that follows?” Judge Neukircher asked.

She asked that the children be assessed by a psychologist. As it turned out, the children in both families were happy with the surrogacy. Judge Neukircher that courts should not just rubber-stamp surrogacy arrangements. The well-being of the existing children needs to be examined.