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Surrogacy Contracts

Why Do You Need a Surrogacy Agreement?

Sensitive Issues to be Clarified Before Entering a Surrogacy Agreement

The Children’s Act No. 38 of 2005 regulates surrogate contracts in South Africa. According to the act, all surrogacy agreements must be in writing and must be confirmed by a High Court of South Africa before the IVF processes can commence. Indeed, should the parties commence with IVF treatments without confirmation of their contract, they can be legally prosecuted and may even be imprisoned.

The fact that surrogacy contracts must be confirmed should be reassuring to the parties involved. Having a formal agreement in place, confirmed by a court of law, provides all parties to the agreement with protection against a breach of contract.

It is essential to discuss all issues regarding the intended surrogacy beforehand and have such stipulated in the agreement. Commissioning parents should discuss and decide, together with the surrogate, what must happen if any issues should occur, such deformities. The parents may, for instance, state that should it become clear that the unborn child has several deformities, such as a lack of limbs or blindness, whether they want to proceed with the pregnancy or not.

The aforementioned is but one of many such sensitive and important issues to clarify and come to an agreement before signing the surrogacy agreement. Surrogacy contracts should also, for example, stipulate the maximum number of IVF cycles to perform within the allowable timeframe, as well as the maximum number of embryos to be implanted.

Questions about the surrogate’s right to terminate the pregnancy for medical reasons must be answered and the conditions of such termination stipulated in the agreement. Matters such as the right to compensation for loss of earnings, maternity wear, cost of hospitalisation, and more must be clarified beforehand, which is why it is important to seek legal guidance regarding implications of each stipulation.

Surrogacy contracts are legally binding agreements and therefore best drafted by attorneys specialising in such contracts. The attorneys also assist the applicants with the drafting of their affidavits, which must be submitted along with the supporting documents when submitting a surrogacy contract to the High Court.

There are various other factors to consider, like contact rights. Is the surrogate allowed to contact the child? What happens if one of the parents pass away before the child is born? What if the remaining parent does not have a genetic link with the child? What if the parents get a divorce before the child is born? What if one of them should move to another country? It is essential that these and many other factors are discussed and stipulated in surrogacy contracts. As such, it is highly recommended to seek legal guidance regarding such contracts to ensure the rights of the unborn child, parents and the surrogate are protected.

Call Adele van der Walt Incorporated for legal guidance and assistance with the drafting of surrogacy contracts in South Africa.


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.