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Process of Surrogacy

Legal and Ethical Issues Regarding the Surrogacy Process in South Africa

The process of surrogacy in South Africa is regulated by the Children’s Act No. 38 of 2005 and according to the Act it is illegal to commence with the IVF process unless the surrogacy agreement has been confirmed by the High Court of South Africa.

Various aspects must be taken into consideration before commencing with the process of surrogacy in the country, such as:

  • Surrogacy is only allowed for altruistic reasons and therefore the Court must be satisfied that the surrogate has no commercial or monetary gain from the process of surrogacy.
  • The surrogate must meet all the requirements:
    • must be domicile in South Africa at the time of signing the agreement;
    • have the written consent for the surrogacy process from her partner;
    • have a living child of her own;
    • have given birth to a living child before;
    • be emotionally and mentally stable; and
    • must be physically healthy.
  • The gametes of at least one of the commissioning parents must be used in the IVF process as there must be a genetic link between the commissioning parents and the child.
  • The commissioning parents are the rightful parents of the child upon birth of the child, and the surrogate thus has no contact or parental rights to the child thereafter.
  • The surrogate may not terminate the pregnancy after artificial insemination for reasons other than medical unless so discussed with the commissioning parents. She then becomes liable for payment of all the costs up to termination of the process of surrogacy.
  • The artificial insemination must be performed within 18 months of confirmation of the surrogacy agreement by the High Court of South Africa.

In addition, the contract must stipulate what the child’s position will be should one or both commissioning parents pass away or should they divorce before the child is born. Adequate provision must be made in the agreement for the upbringing of the child.

It is essential to understand that, unless the various requirements are met as stipulated by the Children’s Act and related laws, the High Court of South Africa will not confirm the agreement. Should the parties involved start with the process of surrogacy by means of IVF before confirmation of the agreement by the High Court, the surrogate will be the rightful parent. The contract is then also void.

Apart from the many legal requirements surrounding the process of surrogacy, ethical considerations which the commissioning parents must think about include the risk of the child born from the surrogacy being mentally or physically disabled, the risk of more than one child born from the surrogacy where one of the children is disabled, and more. In South Africa, more than one embryo can be transferred to the uterus of the surrogate, but not more than three. There is thus a possibility of more than one child to be born from the surrogacy; it is important to make provision for such in the surrogacy agreement.

With the process of surrogacy being expensive, complex and riddled with legal and ethical concerns, it is best to first meet with a surrogacy attorney such as Adele van der Walt to get clarification on the legal requirements before commencing with the process of finding a surrogate.

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.