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Laws of Surrogacy in South Africa

What Do You Need to Know About the Laws of Surrogacy in South Africa?

The laws of surrogacy in South Africa differ from those in other countries. Using the Internet to find general information on aspects such as advertising for a surrogate, types of compensation that you can pay, and what to include in the surrogate agreement can be dangerous. You need to make sure the information is for South Africa specifically.

Laws of surrogacy in South Africa state that surrogacy is only allowed for altruistic reasons. One can argue that compensating the surrogate for travel costs, maternity wear, and for inconveniences should not be a problem, but considering how strict the laws of surrogacy in South Africa are, you need to ensure 100% compliance with the legal requirements.

You and your partner must be able to prove that you are infertile and that the condition is irreversible. Likewise, the surrogate must have family support, a living child of her own, and must be of childbearing age. To prevent the risk of the surrogate doing so for financial gain, she has to undergo social worker and clinical psychological assessments to determine whether she has sufficient financial support or income during the period of surrogacy. She must have the written consent of her partner to enter the surrogate motherhood agreement. The laws of surrogacy in South Africa state that a court can set aside the consent requirement where the partner unreasonably withholds consent.

Just from the above information, you can see that the laws of surrogacy in South Africa are strict. You may, for instance, not commence with the IVF process before the High Court has approved the surrogate motherhood agreement. If you decide to go ahead before getting confirmation of the agreement by the High Court of the country, then the surrogate becomes the rightful parent of the child. In addition, you and all parties involved in the IVF process face the possibility of legal prosecution.

All requirements for the surrogate agreement must be met. At the time of signing the agreement, you or your partner must be domiciled in South Africa. The surrogate must also be domiciled in the country when she signs the agreement. A genetic link must exist between the commissioning parents and the child. This means that the gametes of you or your partner must be used in the IVF process.

As the commissioning couple, you are responsible for paying the legal costs for setting up the agreement and getting confirmation from the court. You also need to pay for the IVF process, all assessments, hospitalisation, and loss of earnings. You must pay for life insurance of the surrogate.

You cannot advertise your need for a surrogate. If you are able to conceive and give birth to a living child, you will not be able to apply for confirmation of the surrogate agreement. Instead of risking non-compliance with important surrogacy laws in South Africa, speak to Adele van der Walt Incorporated about compliance or if you have questions about issues, such as the right to terminate the pregnancy, parental rights, and other relevant issues.


*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 as at the date of publishing –  November 2019.