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Surrogacy Contracts

Understanding Requirements for Surrogacy Contracts in South Africa

The Children’s Act of 2005 governs surrogacy contracts in South Africa. The law provides that surrogacy contracts, confirmed by the High Court, must be in place before artificial fertilisation processes can take place.

Requirements are strict. The gametes of at least one of the commissioning parents must be used in the in vitro fertilisation process. At least one of the commissioning parents must reside in South Africa at the time of signing the agreement. The couple must be able to prove that they are infertile or unable to carry the child to birth. They must undergo medical, psychological and social worker assessments to determine whether they qualify and they must be able to carry the financial costs associated with the legal and surrogacy processes.

The surrogate must be of child bearing age, her partner must provide written consent to the surrogacy, she must have given birth to a living child of her own before and must have at least one living child of her own. Moreover, she must reside in South Africa at the time of signing the contract.

The parties to the surrogacy contract must submit written affidavits, supporting documents and the surrogacy contract to the High Court for approval. Failure to do so before commencement with the fertilisation process will leave the contract invalid and the surrogate and her partner will become the legal parents of the child.

Surrogacy is not allowed for commercial gain and as such, it must be evident that the surrogate doesn’t enter into the agreement for financial gain. She must thus have sufficient finances and family support. She must also undergo medical, psychological and social worker assessments to confirm her suitability as surrogate.

It is illegal to advertise the services of a surrogate or to advertise the need for a surrogate if such is for commercial gain. All surrogacy contracts in South Africa must include provisions for the care and upbringing of the child and the position of the child should the commissioning parents be divorced before the child is born. This also relates to the death of one of the commissioning parents after signing the agreement and before the child is born.

The period in which the artificial fertilisation of the surrogate must take place, must be stipulated in the contract. There is an eighteen-month period after confirmation of the contract in which such must take place. The right to termination of the pregnancy by the surrogate and the financial obligations related to such, should she do so for non-medical reasons, must be stipulated.

Compliance with the Children’s Act requirements regarding surrogacy contracts is essential. However, with every situation being unique, it is essential that parties to the agreement seek legal advice regarding the drafting of surrogacy contracts, interpretation of requirements and application to the High Court of South Africa.

Please note that the information in this article is of a general nature and not intended as legal advice. We strongly recommend speaking to our attorneys first before solely relying on the information to make a decision.