More Articles

Important Legal Aspects Regarding Surrogacy Agreements in South Africa

Medical professionals working with invitro fertilisation or who provide any type of medical services in assistance of surrogacy must make sure that they are well informed about the legal aspects related to surrogacy and agreements regarding such in South Africa. Any contravention of the Children’s Act No. 38 of 2005 can lead to criminal charges against the guilty party. This also applies to the commissioning parents, the surrogate, any agency that facilitates the process, and the attorneys.

Where an agency or fertilisation clinic brings the commissioning couple and the surrogate together, the agency may not require compensation for doing so. Only the legal expenses, medical expenses, loss of income, travel costs, and costs directly related to the surrogacy may be compensated. The agency can thus not commercially benefit from the facilitation process. The fertility clinic, however, can charge for the artificial fertilisation process and medical procedures.

The Act stipulates that only competent persons who will be suitable surrogates or parents, who are domiciled in the country, and meet the requirements can be parties to the surrogate agreement. Note that all relevant parties must sign the agreement, which must be confirmed by a High Court of the country before the artificial fertilisation process can commence.

The agreement must be concluded in South Africa and must be in writing. At least one of the commissioning parents and the surrogate must be resident in South Africa at the time of signing the agreement. Note that the Court can put aside the requirement for the surrogate to be domicile in South Africa at the time of signing the agreement according to the Court’s discretion.

The commissioning couple or person must provide supporting documented evidence of their inability to conceive, carry or give birth to a living healthy child of their own. This condition must be irreversible and medical records to the effect must be submitted. Note that at least the donor egg or sperm must be provided by at least one of the commissioning parents. 

The Court reviews evidence to support the commissioning parents’ application for confirmation of the agreement. This includes review of their ability to be suitable parents. In this regard the commissioning parents’ support structure, health, financial abilities, and emotional and mental state are reviewed.

The surrogate must be in good physical, mental and emotional health, within child bearing age, and must have at least one living child of her own. She must also have given birth to a living child of her own and her partner must give written consent for the surrogacy, though the Court can put such aside if the consent is unreasonably withheld. The Court will also require the full details of any agencies involved and details regarding the payments made for any services rendered related to the surrogacy.

Where artificial fertilisation has commenced without confirmation of the surrogacy agreement, the agreement becomes invalid and the surrogate becomes the legal parent of the child. The Court, however, may review a specific case and if the confirmation is in the best interest of the unborn child, still confirm the agreement. What should be kept in mind is that any medical professional involved in the artificial fertilisation process prior to the confirmation of the surrogacy agreement does so illegally and can thus face criminal charges.

Before taking any steps in seeking, commissioning or offering surrogacy or related services, speak to our team at Adele van der Walt Incorporated to ensure compliance with all legal aspects of surrogacy agreements in South Africa.