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Surrogacy and Legal Issues Surrounding the Agreement

Surrogacy, though governed by Section 19 of the Children’s Act No 38 of 2005, is all but a clear-cut process in South Africa. Many court rulings have demonstrated the need for even more clarification. In instances, where the Act does not provide enough clarification, one has to look at case law in the country.

One of the requirements for a surrogacy agreement to be valid is that a High Court of the country must confirm it. Though it may seem a straightforward process, unless all requirements are met to the satisfaction of the court, an application can be denied.

Another often debated issue is that of compensation for expenses. Since it is illegal to offer surrogacy for commercial gain, the surrogate may only be compensated for expenses directly related to the pregnancy and birth of the child. The commissioning parents can, for instance, compensate the surrogate for loss of income during the pregnancy because of inability to work if there are complications. They may also foot the bill for medical service providers and attorneys providing services directly related to the surrogacy.

In a recent court ruling the judge called for motivation of specific expenses in the submitted agreement. The risk of commissioning parents making payments to the surrogate for unrelated expenses is ever present. They can easily disguise the unrelated payments as lawful payments for financial losses or expenses. As such it is advisable to list each of the expenses for which compensation will be provided.

Where an agency acts in facilitating capacity, it is important to provide the court with all the relevant information about the agency. Another court ruling stated that full information is needed in terms of the financial position of the surrogate. Even without any extra compensation, there is always a risk that a person may be in such financial trouble that they will offer their body for surrogacy to get even the smallest of compensation.

To protect the rights of the child and the commissioning parents, it is necessary to disclose any mother to child transmittable diseases that the surrogate suffers from.

The High Court may furthermore require that all details regarding any previous surrogate agreement applications rendered by the commissioning parents must be disclosed.  The commissioning parents may also need to submit information such as prior convictions for sexual or violent crimes.

Issues such as the ones briefly mentioned above should be addressed promptly in the surrogate agreement. It is imperative to follow all regulations and to understand the full extent of risks, complications and regulations related to surrogacy in South Africa before entering into any agreement. Contact us at Adele van der Walt Incorporated for advice and assistance in drawing up as well as submitting the surrogacy agreement to a High Court of South Africa.