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Surrogacy Agreement

Why Do You Need a Surrogacy Agreement?

You are excited because your best friend just agreed to be the surrogate and carry your child to birth. This is great news because, after years of treatments, you are sadly still infertile. Your biological clock has indeed passed the midnight mark, and there is no hope to have a genetically linked child of your own. This is unless you are able to enter into a surrogacy agreement. According to South Africa’s Children’s Act No. 38 of 2005, however, the gametes of at least one of the commissioning parents must be used, so the gametes of your husband must be used in the IVF process.

Here is the first problem: your husband is the only one with a genetic link to the child. So, what happens if he decides to divorce you before the child is born? Will your husband have more parental rights because he is the biological father of the child born from the surrogacy? Then there is the matter of the surrogate. Will your friend gain parental rights to the child? Other questions also remain. For one, what happens to the child should both you and your husband die before the child is born? Who will then be the parent of the child?

The surrogacy agreement is the legal document that stipulates the rights of the commissioning parents, the rights of the surrogate, as well as the rights of the child. It stipulates how many IVF treatments should be allowed, how many embryos can be implanted, and whose gametes must be used in the IVF process. The agreement also stipulates who is responsible for the payment of the costs associated with the agreement and the surrogacy process.

Looking at these questions, it becomes evident that a surrogacy agreement is essential, even if the surrogate is your best friend. There are many other factors to consider too, which is why it would be in your best interest to seek legal advice on what should be included in the surrogacy agreement. The attorney will make sure that the document is valid in terms of contract law and according to the requirements of the Children’s Act. Furthermore, the attorney ensures fairness to both the commissioning parents and the surrogate. Most importantly, the surrogacy agreement protects the rights of the child born from the surrogacy.

A surrogacy agreement must first be confirmed by the High Court of South Africa before the IVF treatments may commence. The attorney handles the court application and advises you regarding documents needed in the agreement confirmation process.

As commissioning parents, you do not have to go through an adoption process; you are the rightful parents of the child the moment the child is born.

These and many other questions can be answered at your first appointment with Adele van der Walt Incorporated, as an experienced surrogacy agreement attorney in South Africa. Contact us to book your appointment today.


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 – April 2019.