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What You Need to Know Before Commissioning Surrogacy in South Africa

Is surrogacy a better option than adoption? This is a rather personal choice.  If you, however, long to have a genetically linked child of your own but you are infertile or you are unable to carry a child to birth, then surrogacy is a viable option. It is, however, a costly process.

As commissioning parents, must have the funds to pay for the legal costs, the IVF process, medical tests, social worker assessments, and the psychological tests for both you and the surrogate. In addition, you are responsible for the payment of attorney fees, the court application process, and the medical costs of the surrogate.

You are responsible for life cover of the surrogate during the pregnancy and birthing process. You must also pay for loss of earnings if she has to take unpaid leave or is unable to work for the duration of the pregnancy. Moreover, the court must be satisfied that you are financially strong enough to take care of the child.

Apart from being able to pay for the costs associated with surrogacy in South Africa, you must be suitable parents. This means that you must be mentally and emotionally stable. A criminal record, history of substance abuse and the likes will most likely hinder your application process.

The court must be satisfied that you are indeed, infertile or unable to conceive and give birth to a living child. Same gender couples can also commission surrogacy, provided that the gametes of at least one of the commissioning parents are used in the surrogacy process.

Even if you are a single female or male, it is still possible to commission surrogacy, provided your gametes can be used in the surrogacy process. However, various factors affect the application process and, as such, it is best to discuss the requirements with an attorney specialising in surrogacy law.

At least one of the commissioning parents must be resident in South Africa at the time of signing the agreement. This means that even if you are both South African citizens, but you are living and working overseas, you cannot commission surrogacy in South Africa unless at least one of you are domiciled in the country.

The agreement must meet the requirements of the Children’s Act No. 38 of 2005. It furthermore must state how many IVF attempts can be made, what happens if the surrogate decides to terminate the pregnancy, what happens should both the commissioning parents pass away before the child is born, and more.

Your first step towards commissioning surrogacy should be to get in touch with Adele van der Walt Incorporated for legal guidance regarding the process and drafting of the surrogacy agreement. Contact us today to book your appointment.


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 – May 2019.