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Experts in Surrogacy Law

Experts in Surrogacy Law: Important Factors to Consider

Though it may seem the easiest route to fulfil dreams of having a child of your own if you are infertile or unable to carry a child to birth, keep in mind that surrogacy laws differ from country to country. Rather seek guidance from experts in surrogacy law even before you approach a fertility clinic to gain a better understanding of South African laws on the matter.

In South Africa, a genetic link is required between at least one of the commissioning parents and the child. Several other factors must be considered. Section 19 of the Children’s Act of 2005 is the governing law when it comes to surrogate motherhood arrangements in the country. According to the regulations of the law, the surrogate mother may not financially benefit from the arrangement. It doesn’t mean she cannot be compensated for the loss of earnings during the pregnancy. It does mean, however, that only the costs directly related to the surrogate arrangement can be covered by the commissioning parents.

The law states that a written agreement must be in place between the parties. This agreement must be confirmed by a High Court of the country before the IVF process can start. Specific requirements must be met to have the agreement confirmed.

Both the surrogate and commissioning parents must undergo assessments by medical experts, psychologists, and social workers. The reports are the documented proof of the inability to conceive and carry a child to birth for the commissioning parents.

The psychological health of the surrogate is assessed by experts. She must also undergo a social worker assessment to determine her financial situation and family support structure. Medical experts determine her ability to carry the child to birth.

The commissioning couple or parent also undergoes assessments, including medical examinations to determine infertility. In addition, the ability to care for the child is established. The court must be satisfied that the commissioning couple is fit to be parents. Overall, the rights and interests of the child are the most important aspects to consider.

Attorneys help the commissioning couple and surrogate to prepare their application to the court. Supportive documentation is submitted along with the required affidavits to help the court decide to approve or reject the surrogacy application.

At the time of signing the surrogacy agreement, both the surrogate and at least one of the commissioning parents must be domiciled in South Africa. The surrogate requires the written permission of her partner or spouse to enter the arrangement. The court can set the requirement aside if the partner or spouse unreasonably withholds the consent.

Important aspects must be stipulated in the agreement including contact rights by the surrogate and her family if relevant, costs payable should the surrogate terminate the pregnancy for reasons other than medical, how many IVF attempts and how long the agreement is in place, to name only a few.

With many more factors affecting the surrogate arrangement and application, it is best to seek advice from experts in surrogacy law. To this end, get in touch with Adele van der Walt Incorporated for legal guidance.

Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant to the date of publishing – October 2019.