More Articles

Surrogacy Agreements

Important Factors to Consider with Surrogacy Agreements in South Africa

Surrogacy agreements are compulsory and must meet specific requirements according to the Children’s Act of South Africa. Unlike many other types of contracts that are enforceable and binding once signed by all relevant parties, surrogacy agreements must first be confirmed by the High Court of South Africa to be legally binding and enforceable contracts.

Just the fact that the High Court of South Africa must approve such an agreement before the IVF process can commence means that you need the assistance of an attorney. With the strict requirements that must be met, you cannot draw up a surrogacy agreement using a generic legal template; there are simply too many important stipulations that must form part of the contract.

For one, you must stipulate what happens to the unborn child carried by the surrogate should the commissioning couple divorce before the child is born. You also need to stipulate the contact rights of the surrogate and her family with the child born from the surrogacy.

Factors such as what happens should both commissioning parents die before the child is born must be considered and addressed in the contract. Keep in mind that the commissioning couple must pay for the hospitalisation, IVF, assessment, and legal costs related to the surrogacy.

There are many factors that must be considered and addressed in the agreement:

  • Who pays the surrogacy costs when the commissioning parents pass away and the child is yet to be born?
  • What happens if the surrogate decides to terminate the pregnancy for non-medical reasons?
  • What are her rights in terms of such if there is no genetic link between her and the child she carries?
  • What happens if the surrogate does not want to hand over the child to the commissioning parents within a reasonable timeframe and what is seen as a reasonable timeframe?
  • Can she decide to keep the child if there is a genetic link between her and the child?
  • Can she do so if there is no genetic link?

The High Court also requires that the parties to the surrogacy agreement must be able to prove that the surrogate doesn’t commercially benefit from the surrogacy. As such, she must be able to prove that she has the necessary financial support to convince the Court that she is not doing it for financial gain. A young girl with no income can hardly prove that she doesn’t financially benefit from the surrogacy. The law furthermore stipulates that the surrogate must have given birth to a living child of her own before and must have at least one living child.

It is essential to seek legal advice and assistance regarding surrogacy agreements in South Africa to address factors such as what happens when the commissioning parents emigrate before the child is born and whether the commissioning couple has the financial means to pay for all the costs associated with surrogacy and caring for the child.

For more information regarding surrogacy agreements, contact our team of professionals at Adele van der Walt Incorporated 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 – December 2018.