Basic Information about the Legal Aspects of Surrogacy in South Africa
As romantic as the idea of having a child of your own can be, it is still very important for you to consider the legal aspects of surrogacy, especially since the law regarding surrogacy in South Africa differs vastly from other countries. In other words, do NOT consult international websites on the topic. For one, it is illegal to commercially gain from surrogacy pregnancies in South Africa. Also, unlike in some countries, there is no need to adopt the child after birth as the commissioning parents become the rightful parents from the moment the child is born.
The above being said, should fertilisation or any of the surrogacy processes commence before the surrogacy agreement has been confirmed by a High Court of the country, serious legal consequence will follow as no medical practitioner may proceed with the IVF procedure without a court order. Moreover, without the court order, the suitability of the intended parents to act in their respective capacity has not been confirmed as per the case law, therefore rendering the surrogate the legal parent of the child.
Note that unless otherwise stipulated in the surrogacy agreement, the surrogate and her family will have no right to contact with the child after the birth. This can be rather emotional for the surrogate and the law thus states that the screening process must include a psychological assessment to determine the emotional and mental stability and ability of the surrogate to handle the surrogacy process and the matters related to such.
With commercial surrogacy being illegal in the country, you have to rely on the goodwill of a family member, friend or person with altruistic motives from a fertility clinic to act as surrogate. However, even with such willingness, the person must still meet specific criteria.
Legal Aspects Regarding the Surrogate Mother
The surrogate mother must be in good physical, mental and emotional health, and must have given birth to a living child of her own before. Generally, you can also expect that the surrogate’s pregnancies and birthing must have been without any serious complications. The law does not state a minimum or maximum age, but also generally you can expect that the surrogate must at least be 21 years of age and that she cannot be older than 43. In addition, she will need the written consent of her partner. She must undergo various assessments, including a social worker assessment to determine whether or not she has the necessary family support for the process.
Legal Aspects Regarding Compensation
As commissioning parents, at least one of you must reside in South Africa at the time of signing the surrogacy agreement and at least one of you must provide the gametes for the fertilisation. It is essential to have the agreement drafted and reviewed by an attorney specialising in surrogacy law.
You will be responsible for all the costs associated with the surrogacy, including the medical expenses, loss of income should the surrogate be unable to work during her pregnancy, the assessments, court application and the legal fees. As you can imagine, this is a rather expensive process and apart from the financial costs, you should consider whether you qualify as commissioning parents. This means that you will also undergo assessments to determine whether or not you are infertile or unable to give birth, in addition to psychological assessments to determine emotional and mental stability, as well as ability to handle the emotional stresses from the process.
Start by getting professional advice about the legal aspects of surrogacy in South Africa. Contact us at Adele van der Walt Incorporated for more information and to assist with the drafting of the agreement.
Note that the information in this article is for informational purposes only and should not be seen as an attempt to provide legal advice. We strongly recommend that you contact us at Adele van der Walt Incorporated for professional legal advice.