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Surrogacy for Gay Couples

Surrogacy for Gay Couples: What Are the Legal Implications?

Laws regarding surrogacy make it possible for gay couples in South Africa to have a genetically linked child of their own – the emphasis is on genetically linked. This means the gametes of at least one of the commissioning parents must be used in the IVF process.

surrogacy for gay couples

What Are the Legal Aspects in South Africa?

For one, the IVF process cannot commence before confirmation of the surrogacy agreement by the High Court of South Africa. This agreement must meet all the requirements of a legally valid contract. It is essential to have a medical law attorney draft or review the agreement to determine if it meets the requirement. Also, because the agreement must be submitted to the High Court of the country, the help of an attorney is essential.

Other Important Aspects to Keep in Mind

One or both parents must be domiciled in South Africa when the agreement is signed. Surrogacy is only allowed for altruistic reasons. In other words, a couple cannot pay the surrogate for undergoing the IVF process and carrying the child to birth. They can, however, compensate her for expenses directly related to the process, including medical expenses and loss of income. The surrogate must be able to prove that she is financially able to support herself and is not relying on income from the process.

The surrogate must have given birth to a child of her own before, and must be a mother at the time of signing the agreement. If she is in a relationship, she needs the consent of her partner.

The surrogate must be of childbearing age – this is normally between the ages of 21 and 43. She must be healthy enough to undergo the process and must be mentally able to understand the agreement. She has to undergo medical, psychological, and social worker assessments for which the commissioning couple must pay. The commissioning couple must also have to undergo such assessments. Moreover, the High Court must be satisfied that they will be able to care for the child.

Important Aspects to Include in the Agreement

As exciting as it may be for gay couples to get a genetically linked child of their own, one must not forget that relationships often go through difficult periods.

What happens if the couple breaks up before the child is born? What happens if one of the parties to the agreement passes away before the child is born, and what if more than one child is born from the surrogacy? What if the child is disabled or it becomes clear that the child may be mentally or physically disabled should the pregnancy run full-term? How many IVF attempts should be allowed?

These and other aspects must be considered, and provision must be made for such instances. The agreement should thus state the legal aspects regarding the mentioned issues. To this end, it is best to get legal guidance on how to structure the agreement.

Where to Get Answers on the Legal Aspects

Reach out to Adele van der Walt Incorporated for legal guidance on all aspects related to surrogacy agreements for gay couples in South Africa.


Disclaimer: Information in this article is not intended as legal advice and is only for informational purposes. Please seek legal guidance from Adele van der Walt Incorporated before relying on this information to make any legal decisions. February 2021