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Process of Surrogacy

Legal Aspects Regarding the Process of Surrogacy in South Africa

To understand the process of surrogacy in South Africa, it is important to understand how the law describes the surrogacy agreement. Accordingly, it is an agreement between the person who will carry and give birth to the child for a commissioning parent(s) who is biologically related to the child. The surrogate agrees to be artificially fertilised for the above parent(s). The surrogate agrees to hand over the child to the commissioning parent(s) as soon as reasonably possible after the birth of the child.

The surrogate is not the parent of the child and thus has no legitimate claim to parenthood of the child. However, before the process of IVF for the purpose of surrogacy in South Africa can commence, an application must be made to the High Court for approval of the agreement. Failure to do so will result in the surrogate becoming the legitimate parent of the child.

The process of surrogacy in South Africa for the commissioning parent(s) also entails medical assessments to confirm and prove that the commissioning parent(s) is unable to conceive, carry and give birth to a healthy living child. In addition, the commissioning parent(s) must undergo social worker and psychological assessments to determine whether they are emotionally, mentally and financially stable to give the child a stable and healthy living environment.

Before commencing with the process of surrogacy, all legal requirements must be met regarding the surrogacy agreement, such as at least one of the commissioning parent(s) being resident in South Africa at the time of signing the agreement. The gametes of at least one of the commissioning parent(s) must be used in the IVF process.

The commissioning parent(s) is responsible for payment of all costs related to the surrogacy process, including the legal fees, court application for confirmation of the agreement, medical, social worker and psychological assessments, compensation for the surrogacy regarding loss of income, medical expenses, and travel costs.

In South Africa, it is illegal to pay the surrogate for anything other than the expenses allowed for by law. Also note that it is illegal to advertise that a person wants the services of a surrogate. The court will furthermore not confirm the agreement, unless it stipulates terms regarding contact rights and related matters.

The surrogate must also meet specific requirements before the IVF process can commence. She must be resident in South Africa at the time of signing the agreement, must have the written consent of her partner for the surrogacy, must have given birth to a living child before, and must have at least one living child of her own.

She must be healthy, physically able to conceive and carry the child to birth, and must have sober habits. She must furthermore have a sufficient family support structure and it must be clear that she is not becoming a surrogate for commercial gain.

The medical process of surrogacy is best discussed with a reputable fertility clinic in South Africa. The legal aspects are handled by a surrogate attorney.

Please note that the information in this article is of a general nature and not intended as legal advice. We strongly recommend speaking to our attorneys first before solely relying on the information to make a decision.