More Articles

Surrogacy Legal Contract

Important Aspects of the Surrogacy Legal Contract in South Africa

For surrogacy in South Africa there must be a legal contract between the parties, which are the commissioning parent(s) and the surrogate. This contract must be drafted by an attorney and be confirmed by the High Court of South Africa before commencement of the IVF process. This is extremely important as it is illegal to proceed with the IVF process if all the requirements for surrogacy as stated in the Children’s Act of 2005 are not met, one requirement being a valid surrogate agreement confirmed by the High Court.

It is thus not sufficient just to have a signed legal contract for surrogacy. Once the agreement has been drafted, the applicant’s attorney must apply to the High Court for approval of the contract and all its contents. The court will not allow the IVF process to commence if the court is not satisfied that the commissioning couple and the surrogate meet all requirements.

The contract must be legally valid. This means that it must be signed by all the parties, must contain all the details as required by law and must be legally enforceable. Factors such the rights of the child, contact with the child by the surrogate and/or her family, the upbringing of the child, the compensation for medical expenses, duration of the agreement, when fertilisation must take place, how many attempts are allowed, whose gametes will be used in the fertilisation process and so forth must be sufficiently covered.

The surrogate must be a resident in South Africa at the time of signing the agreement. If she has a partner, they must give a written consent for the surrogacy. The court may decide to put the consent aside only if it is found that the partner of the surrogate unreasonably withholds consent. At least one of the commissioning parents must reside in South Africa at the time of signing the agreement. Another important requirement is that the gametes of at least one of the commissioning parents must be used.

The contract must also stipulate what happens when the surrogate decides to terminate the pregnancy. The surrogate has the right to do so as long as she discusses the issue with the commissioning parents beforehand. Her intention must be in writing. If she does so for non-medical reasons, she must pay the costs up to date of pregnancy termination. If it is for medical reasons, she is not liable for such costs. It goes without saying that since there are several expenses involved in surrogacy, the above details must also be stipulated in the agreement.

It is highly recommended that you seek legal advice regarding the requirements for the surrogacy legal contract and assistance in drafting or reviewing it, as well as submitting the application to the High Court of 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.