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Surrogacy Agreements in South Africa – Controversies and Issues

Surrogacy is often a controversial topic, especially because of the lucrative international trade in donor eggs, also from South Africa. At the heart of the controversy are unethical practices followed in India and East-European countries. Fortunately in South Africa, surrogacy agreements are strictly regulated by law and must be confirmed by a High Court of the country before any fertilization may take place. Failure to comply means that the surrogacy is illegal and the surrogate regains full parental rights to the child.

Surrogacy well-regulated in South Africa

Unlike in many countries in the world, in South Africa, surrogacy may only be offered for altruistic reasons. That being said, compensation may be given for the medical costs, loss of income and any costs directly associated with the surrogacy. The surrogate thus still gets an amount to cover her costs.

In other countries such as Italy and Japan, surrogacy is completely illegal. With couples now putting pregnancy off until their early or late thirties, an increasing number of couples struggle with infertility. Stress, work pressure and lifestyles, as well as genetic factors and environmental pollution have been stated as other reasons for the increasing number of infertile couples. Understanding the desire of couples to have a child of their own from their own gametes, surrogacy for altruistic reasons is thus allowed in South Africa.

It is, however, an industry that must be closely monitored and regulated. With international surrogacy donor egg companies now also recruiting in South Africa, it has become even more essential to get legal guidance from a family law or surrogacy attorney before you take any steps in contacting a surrogate.

Must-do regulations

The law in South Africa states that one or both of the commissioning parents must reside in the country at the time of signing the surrogate agreement. The gametes of one or both parents must be used in the surrogacy and the commissioning parents must have medical proof of their infertility or inability to carry the full pregnancy. They must furthermore meet specific psychological requirements. The surrogate must have given birth successfully at least once and must have a living child or more of her own. Her partner must consent to the surrogacy and she must meet the required physical and psychological requirements.

Once the child is born, the commissioning parents become the rightful parents immediately with no need for an adoption. The law states that there are no parental or any legal obligations between the surrogate and the child after birth.

Controversial issues

Some issues do exist regarding partial surrogacy where the surrogate’s gametes are used together with the commissioning male partner’s gametes. Though the child is according to law the child of the commissioning mother, or in the case of same-sex partners, the child of the one commissioning father, the surrogate does have a genetic link to the child.

Such issues are still hotly debated and couples should carefully consider the medical effects on the surrogate as well as the emotional issues which may arise from a surrogacy where a close relative or friend has taken the role of surrogate. Since the surrogate has no legal right to contact with the child afterwards, the emotional strain of carrying a baby and then having to give the child up, must be considered. 

Once the fertilization has taken place, the agreement may not be terminated other than for medical reasons. Should such take place for reasons other than medical, the surrogate may be held responsible for the costs up to the termination of the pregnancy

A High Court of the country recently issued judicial approach guidelines. This was done in light of controversial issues such as foreign couples staying in South Africa for a period and then applying for surrogacy. The guidelines have also been necessary regarding same-sex couples where all factors must be taken into consideration. Another issue that still needs more clarification is that of twins when the couple expected only one child to be born from the surrogacy.

It’s highly recommended that you seek legal guidance before making use of the services offered by any agency here in South Africa or abroad. The Adele van der Walt team can help you review your options, provide you with information about legal requirements and assist in drawing up a legally binding agreement for confirmation by a High Court of the country. Call us for professional legal advice today.