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Legal Issues Surrounding Surrogacy

Important Legal Issues Surrounding Surrogacy in South Africa

You may be an infertile couple and unable to carry and give birth to a child of your own. Perhaps you are a single commissioning parent or you may be in a same-gender relationship and want to follow the route of surrogacy to have a genetically related child. In any of these situations, you will need to consider the legal issues surrounding surrogacy in South Africa before commencing with the process of commissioning a surrogate.

No Advertising for the Services of a Surrogate

You cannot advertise in a newspaper that you need the services of a surrogate. The law in South Africa prohibits commercial gain regarding surrogacy. You can thus not pay someone to act as a surrogate. You can only compensate the surrogate for costs directly related to the surrogacy. Such costs include loss of income during the period of the pregnancy and hospitalisation, the medical costs including assessments, doctor visits and hospitalisation, and transport to and from the medical practitioners. You cannot give an exuberant amount for transport or loss of earnings. This is to prevent a situation where the surrogate gains commercially from the surrogacy.

The Court Must Confirm the Surrogacy Agreement

One of the important issues surrounding surrogacy in South Africa is that of High Court confirmation of the surrogacy agreement. Though you can have a surrogacy agreement in place, which meets all the requirements for a contract, unless the High Court of South Africa confirms the agreement, you cannot commence with the IVF process. Should you decide to do so in order to save time while preparing your court application, you should note that you could face prosecution for the illegal action. The Court will rule that the surrogate is the legal parent of the child and you will thus not have any parental rights.

The Legal Requirements

The court application is handled by an attorney. All the requirements for surrogacy must be met. You must be able to prove that you are infertile and unable to carry and give birth to a living child. At least one of the commissioning parents must provide the gametes for the IVF. This means there must be a genetic link between at least one of the commissioning parents and the child. You must be financially able to carry the cost of the surrogacy and the legal fees. You must also be able to financially provide and care for the child. At least one of the commissioning parents must reside in the country at the time of signing the agreement.

There are many other important legal issues surrounding surrogacy to consider, best discussed with an attorney specialising in surrogacy law. Call Adele van der Walt Incorporated for professional legal guidance to help you avoid costly legal pitfalls.

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 Incorporated before relying on this information to make any legal decisions.