Surrogacy Legal Agreements
Important Aspects to Consider Regarding Surrogacy Legal Agreements in South Africa
Unlike with most other contracts that can be concluded between parties without such having to be approved by a court, surrogacy legal agreements must be confirmed by a High Court of South Africa to be valid and binding.
Without such confirmation, parties to the surrogacy legal agreements cannot proceed with the IVF process. If they do so, they are doing so illegally and can be prosecuted for such. Where parties to a surrogacy agreement fail to get confirmation before proceeding with the IVF process, the surrogate automatically becomes the legal parent of the child born from the arrangement, as the common law regards the person from who’s body the baby is born is the lawful parent. The commissioning parent(s) will not have any parental rights to the child.
Surrogacy agreements must meet the requirements of the Children’s Act. This means that all legal requirements must be met for the contract to be legal. Such requirements include, but are not limited to:
- The surrogate must have the written consent of her spouse/partner to become a surrogate.
- The surrogate must previously have given birth to a living child of her own.
- She must have at least one living child of her own.
- She must be mentally and emotionally stable, and able to understand the agreement.
- She must be domicile in the country at the time of signing the agreement.
Though the Act does not stipulate a specific age group or financial status, the court will not confirm the surrogacy as a legal agreement should it become apparent that the surrogate is too young or old to successfully give birth without immense risk to her life or the life of the child. The court will furthermore not confirm the surrogacy legal agreement if it becomes clear that the surrogate is in financial distress. If a person, for instance, lives in an informal settlement home with three children of her own, does not have an income and is without family support, it would be difficult to prove that she is not becoming a surrogate for financial gain.
The law stipulates that surrogacy may not be done for any commercial gain. As such, the court must be satisfied that the surrogate is able to support herself or has the financial support of her family.
Requirements regarding the commissioning parents:
- At least one of the commissioning parents must be resident in the country at the time of signing the agreement.
- The gametes of at least one of the commissioning parents must be used in the IVF process.
- The commissioning parent(s) must be able to prove that they are unable to conceive and give birth to a living child of their own.
The surrogate must undergo medical, psychological and social worker assessments. The commissioning couple must also undergo medical, psychological and social worker assessments and must pay for the medical costs and other costs such as legal fees, and the court application related to the surrogacy.
Many other factors must be considered, such as how many attempts should be allowed, what happens if the commissioning couple is divorced before the child is born, or what happens should both the commissioning parents pass away before the child is born? What happens if she decides to terminate the pregnancy? These and other aspects of surrogacy should be discussed with an attorney specialising in surrogacies and legal agreements thereof before entering into any form of surrogacy agreement or commissioning surrogacy in South Africa.
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.