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Surrogacy in South Africa is not without Challenges

One of the requirements of the Children’s Act of 2005 is that a genetic link is needed for surrogacy. This means that at least one of the commissioning parents must provide the gametes for the fertilisation. If both partners are infertile, they will have an uphill battle to get permission for surrogacy.

One such an example is the ongoing battle of a 56 year old female who has challenged the laws pertaining to surrogacy in South Africa. According to her court documents, she is infertile and she has from 2001 received no fewer than 18 IVF treatments and has suffered two miscarriages during her 13 year quest to have a child of her own. According to the law, surrogacy excludes couples where they are both unable to provide the gametes, even if one of their family members is willing to provide gametes.

Her argument rests on the foundation of human equality. She used the gametes of her husband for the IVF procedures, but they have since then divorced and she cannot carry a child. The Surrogacy Advisory Group and the University of Pretoria’s Centre for Child Law have supported her application for the removal of the genetic link requirement. The state has argued that the requirement is not unconstitutional and the genetic link requirement forms the base of surrogacy in South Africa. For people in similar situations, adoption seems to be the only alternative.

The above illustrates the challenges that infertile couples in South Africa face. Other requirements that must be met include:

  • The surrogacy agreement must be approved by the High Court before fertilisation may take place.
  • The commissioning parents must provide sufficient documentation and undergo medical tests to show that they are unable to give birth to a child.
  • At least one of the commissioning parents must reside in South Africa at the time of signing the agreement.
  • Surrogacy may not be for commercial gain and the commissioning parents can only pay the medical expenses, legal fees and reasonable compensation for expenses and loss of income during the surrogacy to the surrogate.
  • The commissioning parents must undergo psychological and social work assessments.
  • The surrogate must have at least one living child of her own and must have successfully given birth to a living child before.
  • The husband or partner of the surrogate needs to sign consent to the surrogacy.
  • The surrogate has to undergo medical, psychological and social work assessments to determine if she will be emotionally, mentally and physically able to go through the process.

The rights of the child are the most important aspect to consider. The commissioning parents must beforehand decide whether they will allow contact with the surrogate after the child has been born. Every detail regarding the relationship with the surrogate must be stated in the agreement. Unlike in the past when adoption was needed after birth, the commissioning parents are the rightful parents of the child from birth and the surrogate or her family will not have any rights to contact unless so agreed in the surrogacy agreement.

With many challenges to overcome regarding surrogacy, it is essential that commissioning parents seek guidance from experienced medical law and surrogacy attorneys before they commence with the process. Contact the legal team of Adele van der Walt Incorporated for expert advice and assistance regarding surrogacy agreements.