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The Various Legal Aspects of the Surrogacy Agreement in South Africa

With surrogacy agreements being rather complex, it is recommended that you consult with an attorney specialising surrogacy agreements regarding the requirements for confirmation, the pitfalls to avoid and essential clauses to include.

Which Act governs surrogacy agreements in South Africa?

The Children’s Act No. 38 of 2005 and more specifically, Section 19 of the Act, governs all aspects of the agreement. Understanding the terms used is imperative to ensure compliance with the requirements. An invalid agreement will mean that the child born from the surrogacy will be the legitimate child of the surrogate. According to the Act, no artificial fertilisation of the surrogate may take place before the confirmation of the agreement by a High Court of South Africa. It is crucial to talk to a surrogacy agreements specialist for the application to court for confirmation of the agreement.

What is needed for the agreement to be valid?

The agreement must be in writing, it must be signed by all the relevant parties and all these proceedings must take place in South Africa. This means that at least one of the commissioning parents must be domicile in the country at the time of signing the agreement, as must be the surrogate. The High Court must confirm the validity of the agreement. It should also be noted that this has to be a High Court that has jurisdiction in the area in which the commissioning parent/s stay (domiciled).

What is needed for the application to the High Court?

The commissioning parent and the surrogate must have the written consent of the spouses/partners if they are married or in a relationship. The court will review the supporting documentation that indicates the motivation for commissioning a surrogacy; the evidence in the results/documents and expert opinions regarding the commissioning couple’s (or person’s) medical inability to conceive, carry or give birth to a living child; the results of tests regarding the commissioning parent/s psychological and emotional stability and that of the surrogate; and the social worker assessment to show that the surrogate has adequate support for the process.

The child’s rights always take precedence and the High Court also considers the commissioning parent/s’ ability to care for the child. In addition, the court reviews whether all procedures have been followed and whether the agreement is valid.

Who must provide the gametes for the artificial fertilisation?

The surrogacy agreements specialist will discuss the genetic origin requirements with the parties to the agreement. According to the law, the gametes of at least one of the commissioning parents must be used for the artificial fertilisation process.

What are the requirements for the surrogate?

She must be domicile in the country at the time of signing the agreement and she must be healthy and able to conceive and give birth to a living child. She must already have successfully given birth to a living child before and must have at least one living child of her own. She may not enter into the agreement for commercial gain.

What else must the agreement cover?

The agreement should cover who is responsible for payment of all the costs, the surrogate’s right to terminate the pregnancy, the provisions for the care and upbringing of the child and any stipulations regarding contact with the child. It should also stipulate the child’s status and care, should the commissioning parent/s die or get divorced before the child is born. Various other aspects must be covered, best discussed with a surrogacy agreements specialist.