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Becoming a Surrogate Mother

Important Legal Aspects of Becoming a Surrogate Mother in South Africa

If you are thinking of becoming a surrogate mother in South Africa, be sure to study the Children’s Act of 2010 as surrogacy is only allowed for altruistic reasons. This means that you may not commercially benefit from being a surrogate mother in any way. You may receive compensation for expenses, such as cost of travelling to and from medical facilities, medical tests, doctor visits, hospitalisation, birthing, IVF process, loss of income, and post-natal care. If you are unemployed and financially unable to support yourself, it will be difficult to convince the court that you intend on becoming a surrogate mother for altruistic reasons.

You must be resident in South Africa at the time of signing the surrogacy agreement and must have given birth to a living child of your own before. You must also have at least one living child and will need the written consent of your partner for the surrogacy. In addition, you must be of child bearing age and must be mentally, physically, and emotionally healthy. You cannot be addicted to any harmful substances, which could endanger or affect the health of the embryo or yourself.

You will undergo medical assessments to determine your health and ability to carry and give birth to a healthy living child. You will also undergo a social worker assessment in order to determine your family support network and to assess your economic wellbeing. Apart from such, you will be assessed to determine your psychological health and whether you understand what the surrogacy entails.

The IVF treatments may not commence before the surrogacy agreement, signed by all relevant parties, has been confirmed by the High Court of South Africa. If you proceed with IVF without High Court confirmation of the surrogacy agreement, the agreement will be invalid and the surrogacy will be illegal. The consequence hereof will be that the surrogate mother will be the rightful parent of the child.

Keep in mind that you will have no right to contact with the child after he/she has been handed over to the commissioning parent(s), unless contact rights have been stipulated in the surrogacy agreement.

You have the right to terminate the pregnancy for medical reasons after discussion of such with the commissioning parent(s) without having to pay for the costs of the surrogacy up to the time of pregnancy termination. Should you decide to terminate the pregnancy for reasons other than medical, you will have to pay the costs up to the time of termination of pregnancy.

Get legal advice and assistance with the drafting and reviewing of the surrogacy agreement should you plan on becoming a surrogate mother in South Africa.

Please note that the information in this article is of a general nature and not intended as legal advice. We strongly recommend speaking to our attorneys first before solely relying on the information to make a decision.