How Surrogacy Laws in South Africa Affect the Rights of the Parties Involved
Surrogacy laws in South Africa were limited before the enactment of the Children’s Act No. 38 of 2005. Before then, agreements did not have to be in writing. However, with many issues to be clarified, the rights and wellbeing of the child to be protected, and rights of commissioning parents and the surrogate to be clarified, it is essential to have an agreement in place.
With the introduction of formal surrogacy laws in South Africa, surrogacy arrangements are now well regulated. Any such agreements must be confirmed by the High Court of South Africa to be legally binding. With the court confirmation, parties thus already have a court order to enforce compliance with the agreement.
Prior to the introduction of surrogacy laws in the country, commissioning parents had to go through the adoption process to gain legal parental rights and guardianship over the child born from the surrogacy. They had the risk of a surrogate not wanting to give up a child after the birth of the child. Now, according to the Children’s Act No. 38 of 2005, the commissioning parents are the rightful parents of the child when the child is born. As such, the surrogate cannot thus decide to keep the child. Indeed, unless so stipulated in the agreement, she has no right to contact the child.
With adoption no longer required, the screening process that entails psychological, medical and social worker assessments for the parties to the agreement is essential. The commissioning parents must be able to prove that they are infertile and/or unable to conceive, and cannot give birth to a living child. To ensure the surrogate is less likely to bond emotionally and refuse to give up the child, surrogacy laws in the country stipulate that she must have at least one living child of her own.
She needs the written consent of her partner. She must be in good health and of childbearing age. She may not commercially gain from the process. Last of all, although she has the right to terminate the pregnancy for medical reasons, such must first be discussed with the commissioning parents.
According to South African surrogacy laws, at least one of the commissioning parents must have a genetic link to the child. This means the gametes of both or at least one of the commissioning parents must be used. Moreover, at least one of them must be resident in South Africa at the time of signing the agreement.
It is essential to seek legal guidance before commencing with such an agreement to ensure compliance with the laws of the country. Call Adele van der Walt Incorporated for legal assistance, also regarding the drafting and submission of the agreement to the High Court of South Africa.
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 – May 2019.