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Surrogacy Agreements

Important Aspects Regarding a Surrogacy Agreement

The surrogacy agreement is a legally binding and written contract between the commissioning parent(s) and the female that intends to carry the child to birth for the commissioning parent(s). Surrogacy for commercial or any type of financial gain is illegal in South Africa. As such, the surrogate must enter the agreement with the knowledge that she will not be able to financially gain through the process.

The above said, the surrogacy agreement, which must be confirmed by the High Court of South Africa before the IVF process can commence, must stipulate which costs will be carried by the commissioning parent(s). The commissioning parent(s) is responsible for compensation regarding expenses directly related to the surrogacy. Such expenses include the medical assessments, psychological assessments, artificial fertilisation, medical care, hospitalisation, and legal expenses.

The commissioning parent(s) is also responsible for compensation regarding the loss of earnings experienced by the surrogate directly related to the surrogacy and terms of the surrogate agreement. The parent(s) is furthermore responsible for payment of the insurance that indemnifies the surrogate from disability or death caused by the surrogacy pregnancy and the birthing of the child.

The attorneys drafting the legal surrogacy agreement and handling the application to Court are entitled to reasonable compensation for their professional services. Likewise, the psychologist, social worker, and medical professionals are entitled to compensation for their services rendered.

Advertising of Surrogacy Motherhood Services

Note that it is illegal to advertise the desire to enter into a surrogacy agreement. As such, a broker may not arrange such agreements for a fee. The commissioning couple may not place an ad stating their wish to obtain the services of a surrogate. Likewise, the surrogate cannot advertise her services. Surrogacy is strictly regulated in South Africa and should you wish to follow the route of surrogacy, it is best to discuss the appropriate process with an attorney specialising in medical law and/or to approach a fertility clinic regarding the appropriate procedures.

The Cost of Surrogacy

It is an expensive process in South Africa. As such, the commissioning couple must be financially able to carry the costs. The Court must be satisfied that the surrogate is not entering into the agreement for financial gain and as such, it is essential that the surrogate has sufficient financial means and family support.

Specific Requirements for the Commissioning Parents

At least one of the commissioning parents must be domiciled in South Africa at the time of signing the agreement. The agreement must be concluded in South Africa. The commissioning parent(s) must be infertile, and the condition must be irreversible. The gametes of at least one of the commissioning parents must be used in the IVF process since a genetic link with at least one of the commissioning parents is a requirement.

Specific Requirements Regarding the Surrogate

She must be healthy, must have given birth to a living child of her own before, and must have at least one living child of her own. The surrogate must reside in South Africa at the time of signing the agreement. Moreover, she needs the written consent from her partner regarding the surrogacy.

With surrogacy agreements being legal arrangements, it is essential to discuss the requirements, application process, and terms of the agreements with lawyers specialising in medical law, including surrogacy agreements. Our team at Adele van der Walt Incorporated will be able to help you through the process step-by-step to ensure that the right procedures are followed according to the laws of South Africa.

Information in this article is not intended as legal advice and is only for informational purposes. Please seek legal guidance from Adele van der Walt Incorporated before relying on this information to make any legal decisions.