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Legal Advice on Surrogacy Agreements

Why it is Important to Get Legal Guidance Regarding Surrogacy Agreements in South Africa

Although the stipulations in the Children’s Act of 2005 regarding surrogacy agreements may seem straightforward, interpretation of such stipulations may cause confusion. It is thus recommended that you seek legal advice before commencing with arrangements for commissioning a surrogacy in South Africa.

By law the surrogate agreement must be in writing and confirmed by a High Court of the country before the IVF process can commence; failure to do so before IVF will result in the surrogacy being illegal, and the surrogate becomes the rightful parent of the unborn child. The court will only confirm the agreement if it is satisfied that all requirements are met.

The commissioning couple must be unable to conceive or carry a healthy child of their own and to give birth to the child. For such, they will need to submit adequate supporting evidence of their inability to conceive and/or give birth to a child of their own. Medical records must be submitted and approved by the court.

One of the commissioning parents must provide the gametes. As such, it is not possible to make use of both sperm and egg donors for the surrogacy.

At least one of the commissioning parents must be resident in South Africa at the time of signing the surrogacy agreement. The commissioning parents must undergo psychological assessments to determine their mental and emotional stability and ability to raise a child. They must be financially able to care for the child. Supporting evidence must be submitted to court together with the application for confirmation of the surrogacy agreement.

The surrogate must be resident in the country at the time of signing the surrogate agreement. She must have given birth to at least one living child of her own and must have a living child of her own at the time of signing the agreement. She must be psychologically fit to go through the process and must have adequate family support. If she has one, her partner must provide written consent for the surrogacy. The court can, at its discretion, set the consent aside if the partner withholds such unreasonably.

The court must be satisfied with the physical and emotional health of the surrogate. Supporting evidence must be submitted including the results of psychological, medical and social worker assessments in support of the application.

It is also recommended to seek legal advice on surrogacy agreements to ensure that issues regarding contact rights of the surrogate with the child are covered and how payment for costs directly related to the surrogacy will take place. Other issues that must be covered include, for instance, the right of the surrogate mother to terminate the pregnancy for medical reasons and what constitutes breach of contract.

Surrogacy is an expensive process and the IVF may not be successful at first. The agreement should state what happens when the IVF is repeatedly unsuccessful and in which timeframe the surrogacy should take place. These and other questions can be answered by an experienced surrogacy law attorney. We thus recommend seeking legal advice on surrogacy agreements if you wish to follow the route to having a genetically linked child of your own in South Africa.

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.