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Exploring the Ethical and Legal Considerations of Surrogacy

Surrogacy has helped many families worldwide and is a vital service for many people in South Africa. Surrogacy is a form of reproductive aid whereby a surrogate mother carries a child to full term for the intended parents also known as commissioned parents. The intended mother isn’t able to carry the child to term because of a medical condition that makes it impossible to become pregnant naturally. This might be due to recurrent pregnancy loss, womb malformation, or repeated and unsuccessful in vitro fertilisation (IVF) procedures. After the child's birth, the commissioned parents will become the child's legal guardians.

Before exploring surrogacy, families must consider several legal and ethical considerations.


Understanding Legal and Ethical Considerations

Here are several legal and ethical considerations to consider before embarking on a surrogacy journey. Medical lawyers can walk you through the process to ensure that everything goes to plan.  

  • Surrogacy may not be for financial gain: Under South African law, the surrogate mother must embark on the process for 'altruistic' motives rather than financial ones. While she cannot be paid a fee, she can be reimbursed for any loss of income and for all medical expenses. This means that commercial surrogacy is not allowed. Moreover, surrogates must themselves have carried a baby to full term, and it may not be their first pregnancy.
  • There must be a genetic link: Under South African law, there must be a genetic link between at least one of the commissioning parents and the child. This means that at least one of the parents must use their gametes in the process.
  • All surrogacy agreements must be confirmed by the High Court: No surrogacy agreement can occur without this legal approval. At least one of the commissioning parents in the contract must also be domiciled in South Africa.

Navigating the legal complexities of surrogacy can feel overwhelming, especially if it's unchartered territory that you haven't encountered before. This is where the team at Adele van der Walt Incorporated can help you.

Our Legal Services and Surrogacy Support

If you are interested in the surrogacy process, whether you are a couple trying to conceive or a possible surrogate, having a legal expert on your side is crucial. At Adele van der Walt Incorporated we have the expertise to guide and support you through the surrogacy process. Contact us today to set up a consultation where we can support you at the start of your surrogacy journey.

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 – July 2023.