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Help with Surrogacy Agreements

Why You Need Legal Help with Surrogacy Agreements

Surrogacy agreements are strictly regulated by the Children’s Act of 2005. The High Court of South Africa must confirm the contract between the commissioning parent/s and the surrogate before IVF procedures can commence. It is recommended to seek legal help in setting up such agreements to ensure all the necessary aspects are covered in the contracts.

Help with Surrogacy Agreements

Why Is Legal Help Important?

The agreement must meet all the requirements of a contract and must comply with all the regulations related to surrogacy as stipulated in the Children’s Act. With the complexity of the law and the importance of compliance, it is best to seek legal help with the setting up and reviewing of the contract as soon as possible after having met the appropriate surrogate.

The Children’s Act is clear on many aspects regarding the surrogate. For instance, she must:

  • Have at least one living child of her own.
  • Be domiciled in South Africa at the time of signing the agreement.
  • Have successfully given birth to a living child before.
  • Undergo medical assessments to determine that she is healthy enough and capable to give birth to the child.
  • Undergo a psychological assessment to determine her mental state and ability to understand the agreement.
  • Undergo a social worker assessment to determine if she has sufficient family support, and is not entering the arrangement for financial gain.

The Children’s Act is also clear on certain aspects regarding the commissioning parents. These aspects include, but are not limited to:

  • At least one of the commissioning parents must be domiciled in South Africa when they sign the contract.
  • The gametes of at least one of the commissioning parents must be used in the IVF process.

What is not immediately clear in the Children’s Act is what is seen as expenses directly related to the surrogacy. In South Africa, such agreements may not be for financial gain. However, the commissioning parents must carry the medical costs, assessment expenses, hospitalisation costs, legal fees, loss of income and insurance. What about travel costs for the surrogate, the basic maternity care clothing, and related costs? Legal help regarding the wording of the agreement is essential as it is necessary to stipulate which costs the commissioning parents pay in compliance with the requirements of surrogacy law in South Africa.

Legal help is also necessary to avoid misunderstandings as the result of omissions in agreements. For one, the rights of the surrogate must be stipulated. She has the right to terminate the pregnancy for medical reasons. What if she wants to terminate the pregnancy for another reason? What happens if the child suffers injury before birth? Can the commissioning parents request termination of the pregnancy? What happens if the surrogate is in breach of the contract?

These and many more issues must be addressed. Correct wording for surrogacy agreements is thus imperative. To this end, make use of the legal guidance offered by an experienced medical law attorney. Get in touch with Adele van der Walt Incorporated for legal help with 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. April 2021