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Issues, Misconceptions and Emotional Context of Surrogacy and the Law in South Africa

The Children’s Act of 2005 governs surrogacy law in South Africa. Though you may have read about the practice of getting poor people from Asian countries to be surrogates in return for monetary compensation, the situation in South Africa is completely different.

Tight Legal Control

One or both commissioning parents and the surrogate must be resident in the country at the time of signing the agreement. There is no forced action since the agreement must be drawn up by a medical law or surrogate attorney, signed by all parties and confirmed in a High Court of the country. Shouldthe process of surrogacy take place before confirmation of the agreement, the surrogacy becomes invalid and the surrogate becomes the rightful parent of the child.

No Commercial Gain

Under current South African surrogacy law, the surrogate may only be compensated for costs directly related to the surrogacy including medical costs, loss of income during the pregnancy and birthing period, and any physical or psychological examinations required. She cannot earn a living through surrogacy. As such, the issue of greedy or poor surrogates offering their bodies as carriers in return for wealth or commercial gain is invalid in South Africa.

Commissioning Parents Have Legal Rights

The myth that the surrogate may decide to keep the baby is also dispelled. In South Africa, the commissioning parents become the rightful parents upon birth of the child and the surrogate mother cannot legally terminate the pregnancy for reasons other than medical. If there is a valid reason, the court will decide and it can only be done after discussion with the parents.

Assessments and Surrogate Health

People often think because of the image portrayed in movies that the commissioning parents are rich and simply don’t want to go through the process of having to carry their own child. It is unfounded, since in South Africa, the commissioning couple must be proven infertile or not able to carry the child to birth. Psychological and medical examinations are performed on the surrogate and the commissioning couple to confirm infertility and suitability to be parents. The surrogate must be emotionally stable, physically able to become pregnant and to carry the baby to birth. She must have a living child of her own and must have already given birth to a healthy living child at least once.

Many people believe that the choice of surrogacy comes easy for the commissioning parents. The opposite is true, however, since it is an emotionally straining period to undergo the assessments and the surrogacy agreement must be confirmed by a High Court of the country. In addition, there’s the risk of miscarriage and the parents are just as affected by such as if they’ve carried the child.

Though the image of unhealthy, smoking or drug using surrogates may have been created by the movie industry, the opposite is indeed true. The surrogate, as stated earlier, must be in good health and her partner must provide consent for the surrogacy. She does it for altruistic reasons and therefore generally also takes good care of her body.  She is furthermore by agreement bound to live a healthy lifestyle.

For many couples pregnancy is impossible and though they can adopt, they may long for a child of their own. Since success isn’t a given, couples often go through two to three fertility programs before they opt for surrogacy. Even so, they still have to undergo assessments and sometimes face the heartbreaking reality of miscarriages by the surrogate. It’s not an easy route out and people who have gone through the same pain of losing a child understand the true impact of failure in this regard.

The surrogate offers to carry the baby, but the gametes of at least one of the commissioning parents must be used, giving them the biological link required for claiming natural relation to the child.

It is imperative to consider not only the legal aspects of surrogacy, but also the emotional issues and of course, the rewarding experience it can be for the commissioning parents and surrogate. Contact us at Adele van der Walt Incorporated for surrogacy law guidance, as well as assistance with drawing up and confirmation of the agreement in a High Court of South Africa.