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Fertility Law Specialists

Important Aspects of Fertility Treatments and Surrogacy You Need to Know

Infertility is defined in clinical terms as a reproductive system condition in which the patient, after more than 12 months of regular intercourse fails to reach a state of clinical pregnancy. The harshness of such a cold and clinical explanation of infertility is matched only by the emotional pain of the couple who remains childless after several attempts to conceive and give birth to a child of their own. Surrogacy is often the last resort, best discussed with fertility law specialists, who have a thorough understanding of the laws that govern assisted reproduction and surrogacy in South Africa.

What is Considered Assisted Reproduction?

It is the process though which an infertile couple or person undergoes medical treatment that entails the administering of medication and usage of medical technology to help achieve conception and ultimately, the successful birthing of the child because of it. Where, after several fertility treatments, which may include in vitro fertilisation (in which the gametes of one or both parents are used) as performed by medical specialists, the couple remains infertile, they may decide to get a genetically linked child of their own through the process of surrogacy.

Genetic Link Requirement for Surrogacy in South Africa

The Children’s Act of South Africa governs surrogacy in South Africa. However, a couple who wants to commission surrogacy should also consider how the law, as stipulated in the National Health Act of 2003, regulates egg donation, along with the regulation thereof in the Children’s Act (Section 294). The medical specialists must use the gametes of at least one of the commissioning parents in the in vitro fertilisation process for surrogacy.

Who is Seen as The Surrogate?

The surrogate is the person who agrees to carry and give birth to the child of the commissioning parents. According to South African law, she can only be a surrogate if she has given birth to a living child of her own before and if she has one or more living children.

Can a Husband or Wife Use the Frozen Gametes of Their Deceased Partner for the IVF Process?

Although medically possible, under South African law, even if the couple underwent fertility treatments with the aim of conception, but one of them passes away before they achieve such, the other is not allowed to use the gametes in a surrogacy process, unless specifically allowed for in the will of their deceased partner.

To this end, it is important to discuss the legal issues surrounding fertility treatments, usage of donor gametes, and the period in which successful conception and birthing should be achieved after signing the surrogacy agreement with medical law specialists.

Want to Commission Surrogacy in South Africa?

Apart from consultations with fertility specialists, seek legal guidance on issues pertaining fertility and surrogacy law in South Africa. Call Adele van der Walt Incorporated for professional legal help.

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.