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Fertility and Surrogacy: Help in Understanding the Legal Side

If you struggle to conceive and give birth to a living child of your own, fertility help is available at one of the many fertility clinics in South Africa. If you are a same-gender couple or perhaps a single person who wants to give birth to a genetically linked child, you can also make use of the IVF treatment options.

A third option is available if, after fertility treatments, you are still not able to give birth to a child. With surrogacy, the gametes of at least one of the commissioning parents are used in the IVF process. The female surrogate carries the child and gives birth to the baby, but she has no parental rights to the child. The commissioning parents automatically become the legal parents of the child.

In the instance of surrogacy, a High Court confirmed agreement must be in place before the IVF process can commence. Failure to adhere to the legal requirement has the consequence that the child born from the surrogacy belongs to the surrogate mother and the commissioning parents have no parental rights to the child.

Since surrogacy is only allowed for non-commercial purposes in South Africa, it can be difficult to find a person willing to act as a surrogate. You cannot advertise that you need a surrogate and may not advertise your services as a surrogate. Fortunately, many of the fertility clinics in South Africa can help in this regard.

To become a surrogate, a person must be of an acceptable age and she must be financially strong enough as she must not use the process to gain an income. She must be mentally able to understand the agreement she enters into and must understand that she has no legal parental rights to the child. She must be healthy and must have a proven record of having successfully given birth to a living child of her own before. She must also have a living child.

When it comes to IVF treatments for the purpose of giving birth to a child of your own, where the gametes of at least one of the parents are used, it is also advisable to seek legal help in understanding the various legal requirements. In South Africa, up to three embryos can be transplanted. If you use donor gametes, note that the donor’s identity must be protected. This pertains to egg and sperm donors. You do receive information about the donor’s characteristics and details about the person’s education level, but not their identity.

Also note that the legal maximum period for the storage of the frozen embryos is currently ten years. As such, you will have to undergo the necessary treatments during the ten years. Should your spouse pass away during the period and their gametes have been used in the IVF process, seek legal help as to the recourse available. As it currently stands, you may not use the gametes of a deceased partner in the IVF fertility treatment unless they have given their permission to do so in a legally valid will.

Get in touch with Adele van der Walt Incorporated for legal help on matters related to fertility and IVF treatments and surrogacy agreements in South Africa.

Disclaimer: Information in this article is not intended as legal advice and is only for informational purposes. Please seek legal guidance from Adele van der Walt Incorporated before relying on this information to make any legal decisions. December 2020