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Important Aspects of Surrogacy as Covered by the Children’s Act

All legal requirements of surrogacy in South Africa are governed by the South African Children’s Act. We recommend that you study Chapter 19 of the Act in detail before embarking on the surrogacy path.

Surrogacy in South Africa is allowed if done for altruistic reasons and although compensation can be awarded for specific expenses, it cannot be a transaction from which the surrogate benefits commercially.

Before asking someone to be a surrogate, you need to assess whether she meets the requirements as set out in the Act, including:

  • having successfully given birth to a living child before and having at least one living child of her own;
  • being a citizen and resident of South Africa at the time of signing the agreement; and
  • having the consent of her partner to become a surrogate.

The surrogate should be in good health and although she doesn’t have to be young, it is preferable because she must be healthy and strong enough to carry the baby to birth. She must have a good medical history and shouldn’t suffer from conditions such as diabetes or hypertension. If the pregnancy will pose a serious risk to her health and can mean the exasperation of an existing medical condition, such as asthma, the Court may decide not to allow the pregnancy.

Note that fertilisation cannot commence before the Court confirms the surrogacy agreement. As such, it is important to ensure that all the requirements are met before submitting the agreement to Court. This also includes the supporting documentation to prove good health on the part of the surrogate, evidence that it is not possible for you or your spouse to carry the child, and psychological assessments.

One of the legal requirements of surrogacy in SA is that both or at least one of the commissioning parents must provide the gametes for the surrogacy as it is still illegal to use the eggs and sperm of donors. This means that either the eggs or the sperm or both must come from the commissioning parents.

The commissioning parents become the legal parents of the child born from the surrogacy at the birth of the child and the surrogate and her family don’t have any parental rights over the child. Unless it is stipulated in the agreement she and her family may also not contact the child. It is important to consider the possibility of twins or triplets born from the surrogacy. In such an instance you as commissioning parents will be the proud parents of more than one child.

There are allowable instances for termination of the pregnancy after fertilisation such as for medical reasons. Should the surrogate decide to terminate the pregnancy for any other reason she can be held responsible for the costs incurred regarding the surrogacy. She can only terminate pregnancy after discussion with the commissioning parents.

Should the agreement not meet all the legal requirements of the Chapter 19 of the Children’s Act, the agreement will not be confirmed. This means that should you proceed with the fertilisation then the child born from the surrogacy will belong to the surrogate and you will have no parental rights.

There are many more legal requirements of surrogacy in South Africa that should be considered and it is thus imperative that you seek guidance from our attorneys to avoid pitfalls.