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Legal Issues Related to Surrogacy

Understanding the Many Legal Issues Related to Surrogacy in South Africa

It is important to discuss legal issues related to surrogacy in South Africa with attorneys specialising in medical and surrogacy laws because non-compliance with the legal requirements can jeopardise your parental rights to the child born from the surrogacy.

One such a legal issue related to surrogacy in South Africa is the requirement to have the surrogacy agreement confirmed by a High Court of the country before commencing with the IVF process. Failure to do so will mean that the agreement becomes void and the surrogate becomes the rightful parent of the child.

Another issue to consider is that of contact rights of the surrogate and her family with the child. Unless specifically stipulated in the surrogacy agreement, she and her family have no right to contact the child. It is important to discuss such issues with all parties involved and to make sure that all parties to the agreement understand the wording of the contract, implications of such, and implications of contract breach.

As commissioning parents, you have to take note of the surrogate’s right to terminate the pregnancy. If it is for medical reasons, you, as the commissioning parents, will still be responsible for all the costs associated with the surrogacy. If she does so for other reasons, she becomes liable for payment of costs up to the termination of the pregnancy. It is important to note that since surrogacy in South Africa is only allowed for altruistic reasons, you may not advertise your need for a surrogate in any way. Any such advertisements are illegal.

Though one can argue that it is possible to pay the surrogate without stipulating payment in the agreement specifically for her services, you have to understand that the practice is illegal and punishable by law. The court must be convinced that the surrogate does not offer her services for commercial gain. If she, for instance, lives in a small informal settlement home with three kids and no income, you will have a hard time in convincing the judge that she is doing it for altruistic reasons.

In order to prevent such, the court requires sufficient proof of the surrogate’s financial stability, adequate family support and the written consent of her partner. These and many other legal issues related to surrogacy in South Africa should be discussed in-depth with a surrogate attorney to help you understand the requirements of the law as relevant to surrogacy in South Africa.

Call Adele van der Walt Incorporated for legal advice regarding the above and other issues, such as the timeframe in which IVF must take place from date of signing and confirming the agreement, what happens if the commissioning couple is divorced before the child is born, and more.

Information in this article is not intended as legal advice and is only for informational purposes. Please seek legal guidance from Adele van der Walt before relying on this information to make any legal decisions.