Surrogacy Law Professionals

Why You Need Legal Help from Surrogacy Law Professionals

Surrogate motherhood for commercial gain is allowed in many countries across the globe. In South Africa, however, the Children’s Act of 2005 stipulates that surrogate motherhood is only allowed if it’s for altruistic reasons. With the strict regulations surrounding the agreement between the commissioning parents and the surrogate, it is imperative to seek assistance in this regard from surrogacy law professionals.

Confirmation of the Agreement by a High Court of the Country

The agreement between the parties must meet specific requirements, and it must be submitted to a High Court in the country for approval before the parties can commence with the IVF process. With such, the parties to the agreement require the guidance and representation of surrogacy law professionals to draft the agreement and submit it to the court.

Specific Requirements for the Surrogate

As the court must be satisfied that the surrogate is not entering the agreement because she wants to gain monetary benefit from it, the surrogate must undergo a social worker assessment. This is to determine if she has family support and is able to financially support herself during the pregnancy.

The law is also specific about her emotional, mental and physical health. She has to undergo assessments by professionals, such as psychologists, to determine her emotional health. She must be able and willing to give the child to the commissioning parents as soon as possible after birth. Furthermore, she must be mentally capable of understanding the agreement and what is required of her.

Medical professionals conduct the medical examinations to determine her physical health and ability to carry the child to birth. The law also requires her to be domiciled in the country at the time of signing the agreement. She must have given birth to a living child of her own before and should also have at least one living child of her own. The surrogate also requires the written consent of her partner to enter the surrogacy agreement. The law does stipulate that the written consent can be set aside by the court if the partner unreasonably denies such.

What the Law States Regarding the Commissioning Parents

The commissioning couple or person also has to undergo assessments by medical, social work, and psychology professionals. This is to determine their financial ability to take care of the child born from the surrogacy, the mental and emotional state of the commissioning parent(s), and for confirmation of the inability to conceive, carry and give birth to a child. The commissioning couple or person must be infertile, and the condition must be irreversible. At least one of the commissioning parents must be domicile in South Africa at the time of signing the agreement.

Although single parents and same-sex couples can enter surrogate agreements, the law states that the gametes of at least one of the commissioning parents must be used in the IVF process. There must thus be a genetic link between the child born from the surrogacy and one of the parents or the single parent.

Where to Find More Information and Help from Professionals

Contact the surrogacy law professionals at Adele van der Walt Incorporated if you require legal guidance and assistance for the drafting and submitting of the surrogacy agreement to the High Court.

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 – September 2019.