MAY IT PLEASE THIS HONOURABLE COURT.

1. My lords and my lady, it is our humble submission that the lower Court erred in law and
in fact when it ordered custody of the child to the surrogate Mother, for that is not in the
best interest of the Child, this is so because the surrogate mother is not in any way,
financially stable to support the Child and her conduct is such that it would influence the
child in a negative way.
2. My lords and lady, a child born as a result of a surrogate agreement is much of a child as
that born in wedlock and has its rights governed and protected by the children’s code act.
The court in considering its Custody, the welfare of the Child is to be made a paramount
consideration.1 This is in conformity with Article 3 of the Convention on the Rights of
the Child. The test set out by the court in the Colange v Chikachi.2 Case when
determining who has the best interest of the child at heart before granting custody
provides lower courts a guideline. In doing so, the court is required to consider: "Who the
father is, who the Mother is; what they are prepared to do, and all the circumstances of
the case.
3. As to the first question, that is who the father of the child is? My lords and lady, my
client is undisputedly the father to the child as his sperms where used to perform the IVF.
How surrogacy operates when it comes to who holds the parental rights of the child can
be likened to adoption, a person who adopts a child becomes so much a parent as though
the child is his in the first place, this is evident by the fact that the child can inherit from
the adopted parent’s properties. The case is similar with surrogacy arrangements, the
child becomes that of the intending parents and not the surrogate mother, and this is
illustrated by the C.M v M.C case. Where the court refused a surrogate mother custody
of the child among the triplets she was supposed to have as a result of a surrogate
contract.
4. Secondly, the question as to who the mother to the child is? My lords and lady, it is our
contention that the mother of the child is Mrs. Masi and not the surrogate mother. It is in
the very definition of the word surrogacy, Black's Law Dictionary defines surrogacy as;

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ACT No. 12 OF 2022,The Children's Code
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Colange v Chikachi (HPD 39 of 2014) 2016 ZMHC
 5. "A contract between a woman and typically an infertile couple under which the woman
provides her uterus to carry an embryo throughout pregnancy; esp., an agreement
between a person (the intentional parent) and a woman (the surrogate mother) providing
that the surrogate mother will (1) bear a child for the intentional parent, and (2)
relinquish any and all rights to the child. The agreement, provides that the woman will
relinquish to the couple any parental rights she may have upon the birth of the child."3
6. My lords and lady, the entirety of the contract of surrogacy depends on someone waiving
their rights, going back own their words does not render the contract void. The surrogate
mother ceased to be the mother of the child in question and has no right to claim custody
of it.
7. Third to be considered is what the parents are prepared to do? In the colange case supra,
the courts held inter alia that the best interests of Child principle does not only look at the
financial standing of the parties, their status or what they can provide but demands that
the children's best interests be considered. In this particular case, the Child and lives with
the respondent who is responsible for his well fare and all his needs since birth, anything
they are will to do is already been done.
8. And on that note, my lords and lady, the lower court did not consider section 2(g) of the
children’s code act,4 when making the custody order. The said section provides that the
court should consider the strength of the relationship between a child and
the child's parent or a person having parental responsibility for the child, Mr. and Mrs.
Masi have been living with the child for over 9 years, for people who had a connection
with the child the first time they held it. Changing the current status quo will not be in the
best interests of the Child.
9. My lords and lady, it would be a grievous mistake to contend that the court negated the
financial stability of the parties in the excerpt of the colange case supra holding above.
On the contrary, it is very much a big factor to be considered but the emphasis was put on
the fact that it should not be the only factor to be considered. Section 2(f) of the
children’s code act.5 Provides that one should consider the ability of a parent or a person
having parental responsibility for the child to meet the child's needs.
3
Black's Law Dictionary 1674 (10th ed. 2014).
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ACT No. 12 OF 2022
5
ibd
 10. My lords and lady. It goes without saying that the surrogate mother is not financially
stable as can be seen, she intends on depending on the commissioning parents to give her
the money for the child’s maintenance and possibly herself. On the other hand, what the
intending parents are willing and have been doing for the past 9 years of the child’s life is
provide the best they can for the child.
11. A case that drives a dagger to the heart of the matter at hand was considered by the
Supreme Court in The Matter of Baby M.6 in the United States, this was a seminal case
in family law, it was the first court ruling in the United States involving surrogacy and a
surrogate-parenting agreement.
12. In the case, William and Elizabeth Stern were not able to have children and decided to
contact the Infertility Center of New York for help. The Sterns were connected with
Mary Beth Whitehead who agreed that she would be a surrogate for them through
artificial insemination. They also agreed that Ms. Whitehead would give up the child and
her parental rights to the Sterns after the baby's birth. For her services, Sterns would pay
Whitehead $10,000, and a contract was signed outlining the terms.
13. However, when Ms. Whitehead gave birth to a healthy baby girl, instead of giving the
child to the Sterns, she fled with her to another state. The Sterns sued Ms. Whitehead in
New Jersey state court, asking the court to enforce the surrogacy contract. The trial court
enforced the surrogacy contract, and the Sterns got full custody of the child. Ms.
Whitehead appealed to the Supreme Court of New Jersey. The Supreme Court affirmed
in part, reversed in part and remanded the case back to the trial court.
14. The Supreme Court of New Jersey restored Whitehead’s parental rights and nullified the
adoption that was part of the original surrogacy contract but remanded the case to the
lower court for the completion of "best interest of the child" analysis. On remand, the
biological father (William Stern) received primary custody of the baby after the court
determined that it was in the best interest of the child. Ms. Whitehead was given
visitation rights and was kept on the birth certificate as the legal mother.
15. The case may have minor differences; we believe the surrogate mother has no parental
rights to the child at all but the material is torn from the same cloth, and the best interest
of the child must prevail.

6
In The Matter of Baby M 109 N.J. 396 (1988)
 16. When considering the best interest of the child, the conduct of the parents is a relevant
factor, but its significance is variable, guilt or innocence is rarely a determinant as to
custody of children unless the conduct is of such gravity. In Re L (infants).7 In that case
an adulterous mother deserted the matrimonial home to live near her lover, leaving
behind her husband and two children aged 4 and 6.
17. She refused to come back even after the husband was ready to forgive her. The Court
ruled that the father should have the care and control of the children. The conduct of the
surrogate mother could be likened to that of the mother in the case mentioned above,
someone who could falsely accuse the father to the child of abductions when it is trite law
that a parent cannot kidnap their own child.
18. My lords and lady, Section 2(e) of the children’s code act,8 instructs the court to observe
of any harm which the child has suffered or is at risk of suffering, it is our clients fear that
the child is at risk of becoming a Coney artist like the surrogate mother if the lower
court’s ruling is not reversed.
19. My lords and lady, the surrogate mother entered a surrogacy agreement, and after giving
birth, she kept the child with the intention to unjustly enrich herself. This is evident from
her conduct; destroying the surrogacy contract, and demanding for more money. This
conduct proves that the surrogate mother has no intention to care for the child but only
intends to continue benefit financially from it, the likelihood of her teaching the child the
same behaviour is high.
20. My lords and lardy, the court in the test set in the Colange case supra, provided lastly that
the facts of each case be considered as they are, different. And the case at hand, the
surrogate mother is single woman. Giving the surrogate mother custody would not be in
the best interest of the child. As the father, unlike the surrogate mother is married and
stable, it would in the best interest of the child to live in a home that is complete, a home
that has both a father and mother figure as this has proved to work positively in the
upbringing of the children.
21. In light of the aforementioned test which is in conformity with the children’s code Act, it
is our humble prayer that my lords and lady consider our humble submission in line with
the test set forth and reverse the holding of the lower court as it is contrary to the law, the
7
Re L (infants) (1962) 3 All ER 1
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ACT No. 12 OF 2022
facts of the case prove that the surrogate mother has no parental rights neither does she
have the best of the intentions for the child. while Mr. and Mrs. Masi. have satisfied the
test in its entirety.