Surrogacy Pregnancy Agreements
Why You Need Legal Advice on Surrogacy Agreements in South Africa
It is highly recommended to get legal advice on the drafting and reviewing of surrogacy pregnancy agreements in South Africa. Unlike with other contracts, such as Offer to Purchase agreements which become legally binding Sale of Property contracts once signed by the relevant parties, surrogacy pregnancy agreements must first be confirmed by a High Court of South Africa before the agreements become valid and legally binding contracts.
The agreements must meet all the requirements of contracts and must be signed by the commissioning parents and the surrogate. If the surrogate has a spouse or partner, then she needs their written consent to the surrogacy. At least one of the commissioning parents must reside in the country at the time of signing the agreement and so must the surrogate.
Though provision is made and stated in the surrogacy pregnancy agreement for payment of legal fees and the costs of the surrogacy by the commissioning parents, the law in South Africa prohibits commercial gain from the surrogacy by the surrogate. The surrogate cannot advertise her services and the commissioning couple cannot advertise their need for a surrogate in a newspaper.
The court must be satisfied that the surrogate has adequate financial means to ensure that she does not enter into the agreement for monetary gain. She must meet various requirements, such as being of child bearing age, as well as being physically, mentally, and emotionally healthy and stable. She must have a living child of her own and must have given birth to a living child before. The surrogate must undergo various assessments such as medical, social worker, and psychological assessments to determine if she meets the mentioned requirements.
Likewise, the commissioning parents must undergo medical assessments to determine their infertility or inability to conceive and carry the child to birth. They must have sufficient financial means to pay for the costs of the surrogacy, including the legal fees associated with the setting up of the surrogacy pregnancy agreement and the application to court. They must also undergo psychological assessments.
The agreement must address issues such as the right of the surrogate to terminate the pregnancy after having discussed the issue with the commissioning parents. If the surrogate, for instance, needs to terminate the pregnancy for medical reasons, she is not liable for the costs up to the termination of pregnancy.
Other issues such as contact rights with the child, the upbringing of the child, how many IVF attempts may be made and within which timeframe, the obligations of the surrogate, and more must be stipulated.
Make use of the legal services offered by Adele van der Walt to help avoid pitfalls regarding surrogacy pregnancy agreements 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.