Surrogacy for a Single Parent
Important Issues to Consider Regarding Surrogacy for a Single Parent in South Africa
Section 294 of the Children’s Act clearly states that surrogacy in South Africa is only allowed if there is a genetic link with the child. It means that the gametes of at least one of the commissioning parent(s) must be used in the IVF process.
Surrogacy for a single parent is thus possible as long as there is a genetic link. A person cannot commission surrogacy if they have to make use of donor sperms and eggs. This provides for a clear distinction between surrogacy and adoption where the parent adopting a child do not necessarily have a genetic link with the child.
A single infertile parent, unable to provide the gametes for the surrogacy, can enter into a relationship with another party in order to have them provide the gametes for surrogacy. This would not give the person a genetic link to the child, but since the law requires that the gametes of at least one of the commissioning parents must be used in the IVF process, the requirement will then be met if they, as a couple, commission surrogacy. It is not, however, the only obstacle for a single parent wishing to commission surrogacy.
The law provides that it must not be possible for the commissioning parent(s) to conceive, carry and give birth to a child. There must be sufficient evidence of the above before the High Court of South Africa will confirm the surrogacy agreement. For such, the commissioning parent(s) must undergo medical assessments. In addition, the commissioning parent(s) must be able to provide for the child.
Surrogacy for a single parent is thus a bit more complicated since the court will not confirm the surrogacy agreement if the single parent does not have a sufficient support structure to ensure the child’s welfare. If the person has to work nightshifts, for instance, where will the child stay? If the person works long hours or does not have a stable income, then it can be difficult to prove that the child’s welfare will not be compromised.
There is also the issue of whether the single parent is responsible enough to care for a child. Someone in their early twenties, working two jobs, and known for enjoying lively parties and having tendencies to be violent, may not be the right candidate as commissioning parent.
Likewise, someone that struggles with chronic and serious health problems may also find it difficult to get a surrogacy agreement confirmed. A single parent in their sixties may find it difficult to convince the court that they are in a reasonable age group for parenting, especially if they have health problems.
It is about the rights and welfare of the child. If the single commissioning parent passes away before the child is born, how will it affect the child’s status? What will happen to the child where the commissioning parent dies shortly after the birth of the child? Are there family members that can take over the parental role?
Many more such issues exist regarding surrogacy for a single parent, best discussed with an attorney specialising in surrogacy laws and agreements. For more information on this subject matter, please feel free to contact Adele van der Walt Incorporated.
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 before relying on this information to make any legal decisions.