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IVF Surrogacy Agreements

Important Issues Surrounding the IVF Process and Surrogacy Agreements

Surrogacy agreements are more complex than they may appear to be. With several parties affected by arrangements of this nature, it is reassuring to know that all surrogacy agreements must, therefore, be confirmed by a High Court of South Africa before couples can proceed with in vitro fertilisation (IVF).

The number of embryos that can be transferred is three, though it is recommended to transfer one embryo if the mother is 38 years of age or younger to avoid the risk that more than one child is born from the pregnancy. Where the mother is 39 years of age or older, a maximum of two embryos per transfer is recommended.

Though in some countries, such as Canada or Spain, frozen embryos can be stored for an unlimited period of time, in South Africa, the embryos may not be stored for more than ten years. Storage considerations are important, as more than one treatment may be necessary to ensure the successful transfer and pregnancy. It is important to stipulate the total number of IVF attempts in surrogacy agreements.

In South Africa, single and same-gender couples are allowed to undergo IVF treatments and surrogacies are thus allowed for these people, provided the gametes of at least one of the commissioning parents is used in the IVF process. Therefore, there must be a genetic link between at least one of the commissioning parents and the child.

Couples may not advertise their need for a surrogate and the arrangement must be altruistic. This means that the surrogate may not benefit commercially from offering her services. Surrogacy agreements must clearly stipulate what the commissioning parents pay for, such as medical bills, loss of earnings (where relevant), insurance, and legal fees.

It is imperative that the surrogate is of childbearing age. It has been noted that surrogates under the age of 35 have a higher success rate in carrying a child to birth. Fertility clinics that assist with surrogacies in South Africa follow strict screening protocols to help improve the success rate of surrogacies. For one, the surrogate must be younger than 43 years of age and she must have had a living child of her own before, with her pregnancy or pregnancies having proceeded without any complications. She must be in good health physically, mentally, and emotionally. She must not have had more than two C-sections before.

Apart from these conditions, many other factors must be taken into consideration in terms of IVF treatments and the arrangements regarding the assessments, hospitalisation, birthing, and welfare of the child. These arrangements must be stipulated in the surrogacy agreements. It is thus imperative to first seek legal advice from an attorney such as Adele van der Walt that specialises in medical law before commencing with the search for a suitable surrogate or gamete donor.

Call Adele van der Walt Incorporated for professional assistance with the legal aspects surrounding surrogacies in South Africa.

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 – June 2019.