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Legal Aspects of Surrogacy Motherhood

Do You Understand the Legal Aspects of Surrogacy Motherhood for the Surrogate?

Even with the complexity of the process and the legal aspects surrounding surrogacy motherhood, it is an unselfish and rewarding act to help a couple to conceive and give birth to a child of their own.

The regulations in the Children’s Act of 2005 are in place to protect all parties, especially the child that will be conceived in line with this process. As such, make sure you understand the legal aspects of surrogacy motherhood before signing a surrogate agreement, some of which are briefly discussed below.

Legal Aspects of Surrogacy Motherhood


Legal aspects for the surrogate

You must be of childbearing age and must have successfully given birth to a child of your own previously. In addition, you must have at least one living child of your own. If you’re in a relationship or married, make sure you get the written consent of your partner.

At the time of signing the agreement, you must be domiciled in South Africa. The agreement must be confirmed in a High Court of South Africa before the IVF process can commence.

As with any contract, you must be mentally able to understand the consequences and terms of the agreement. For one, you will have to give up the baby to the commissioning parents as soon as possible after birth. This period will be stipulated in the agreement with the commissioning parents. Once the child is born, you will have no parental rights or the right to establish contact with the child unless provision is made for it in the surrogacy motherhood agreement.

You will have no right to financial compensation other than the costs directly related to the surrogacy. The commissioning parents will pay for doctor visits, hospitalisation, travel costs, legal fees, court application, psychological assessments, social worker and medical assessments, the IVF process, medical insurance for the period, and your loss of income during the period. To prove that you’re not offering services for financial benefit, you must be able to show that you have sufficient family and financial support for the period.

As for the right to terminate the pregnancy, if done for medical reasons, then you will not be liable for the costs up to the date of pregnancy termination. However, if you should decide to terminate the pregnancy for another reason, you will first have to discuss it with the commissioning parents and will be liable for costs up to the date of pregnancy termination.

Before signing the agreement, consult with Adele van der Walt Incorporated regarding the legal aspects of surrogacy motherhood and to get assistance in reviewing the agreement.

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 – December 2021.