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The Importance of a Surrogacy Agreement

Don’t Underestimate the Importance of a Surrogacy Agreement

Surrogacy in South Africa is regulated by the Children’s Act. According to the law it is illegal to pay someone to be a surrogate in the country. It is also illegal to commence with the invitro fertilisation process unless there is a surrogacy agreement in place, signed by all relevant parties and confirmed by a High Court of the country.

The importance of a surrogacy agreement and the confirmation thereof by the High Court cannot be overstated. Without such in place, the commissioning parents are not the rightful parents of the child and the surrogate automatically becomes the legal parent of the child. In addition, legal prosecution can follow in which the commissioning couple and the surrogate can be held accountable for their illegal actions related to commencement of the fertilisation process without court confirmation of the agreement.

At least one of the commissioning parents must reside in the country at the time of signing the surrogacy agreement. The surrogacy agreement must also be signed by the surrogate, who must reside in South Africa at the time of signing the agreement. Her partner must also provide written consent for the surrogacy. However, should the partner withhold consent unreasonably, the court may put the consent aside and still confirm the agreement.

The importance of a surrogacy agreement also relates to the rights and best interests of the child. Such an agreement must stipulate the details regarding contact rights of the surrogate and her family with the child, and must also provide information about the rights of the child. Unless so agreed, the surrogate and her family don’t have any rights to contact the child.

Since each surrogacy situation is unique, it is not recommended that the parties to the agreement use a sample or template agreement from the Internet. It is essential to make use of an experienced surrogacy lawyer to draft or assist in reviewing the agreement. The court application must be done by an attorney on behalf of the relevant parties and since the agreement is a legally binding contract, it is essential that it meets the requirements of a valid contract.

The agreement must, for instance, stipulate the details of the surrogate’s intention to carry the child on behalf of the commissioning couple and her willingness to relinquish all parental rights to the child. It must also stipulate how many embryo transfer attempts are allowed and what the maximum number of embryos per attempt will be.

Aspects such as the right of the surrogate to terminate the pregnancy, liability for costs of the surrogacy should she decide to do so for non-medical reasons, and related aspects must also be covered in the agreement. The agreement must also stipulate compliance with the requirements for surrogacy such as the psychological, social worker and medical assessments for the surrogate and the commissioning couple. Compensation terms must be clear for medical costs, legal fees, transportation, hospitalisation, post-care and assessments.

To avoid confusion about terminology, terms and conditions, and compliance of the surrogacy agreement, it is important to discuss the legal requirements for surrogacy in South Africa and the requirements for the agreement with an experienced surrogacy law attorney.

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.