South African Surrogacy Laws
Why It Is Important to Understand South African Surrogacy Laws
The Children’s Act of 2005 is one of the most important laws to consult if you want to enter into a South African surrogacy agreement. According to the Act, a surrogate agreement is a legal arrangement between the commissioning parent or parents and a female who agrees to be artificially fertilised to carry and give birth to the child of the commissioning parent or parents. The surrogate agrees to give the child to the commissioning parent(s) as soon as possible after birth. She has no right to the child and the commissioning parent(s) do not have to adopt the child, as they are automatically the rightful parents.
The “surrogate” refers to the person who stands in for the mother in carrying and birthing the child. Unlike in many other countries where laws regarding surrogacy are less strict, in South Africa, a High Court must first confirm the surrogacy agreement before the in vitro fertilisation (IVF) process can commence. Should the parties commence with the process before confirmation, the surrogate becomes the rightful parent of the child. The medical professionals who have conducted the procedures and all parties to the arrangement can be prosecuted.
It is therefore essential to adhere to the laws related to South African surrogacy, one of which is that the gametes of at least one of the commissioning parents must be used in the IVF process. Another requirement is that the surrogate must be a resident in the country at the time of signing the agreement and so must at least one of the commissioning parents.
Under South African laws, it is illegal for the surrogate to gain commercially from the arrangement. As such, the commissioning parents can only pay for her medical costs, legal fees, insurance, and loss of income, where relevant. Only costs directly related to the surrogacy can be covered. It is also important to understand that the surrogate must be assessed by medical and psychological professionals, as well as a social worker, to determine her health and emotional state, her ability to give birth, her family and financial support structure, and her mental capacity to understand the implications of the agreement.
The commissioning parent(s) must also be assessed by medical and psychological professionals, as well as a social worker. The parents must have proof of their (irreversible) infertility and be able to afford the costs associated with the process. The court must be satisfied that they are able to provide in the needs of the child.
If you want to commission surrogacy, seek legal advice from a South African attorney versed in the local laws. Call Adele van der Walt Incorporated for legal assistance.
Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant to the date of publishing – June 2019.