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Surrogate Motherhood Agreements

Basics of All Surrogate Motherhood Agreements in South Africa

Surrogate motherhood agreements are legally binding contracts between the commissioning couples or parent and the woman willing to carry their baby to birth. The High Court of the country must confirm these agreements before the contracts can become valid and legally binding in South Africa.

Since court applications are needed for surrogate motherhood agreements, it goes without saying that the help of attorneys specialising in surrogacy law is essential. Factors such as payment of costs, the number of IVF treatments, the duration of the contract, the right to terminate the pregnancy, and so forth must be considered. The above and other factors must be dealt with within the surrogate motherhood agreements, including stipulations regarding contact rights of the surrogate and her family, and the rights and obligations of each party to the contract.

For surrogacy motherhood agreements to be confirmed by the High Court of South Africa, all the requirements for such contracts as stipulated in the Children’s Act of 2005 must be met, some of which are briefly noted below.

Requirements for the Surrogate

The surrogate must be domiciled in South Africa at the time of signing the contract and must have the written consent of her partner for surrogacy. She must have given birth to a child of her own before and must have at least one living child. She must undergo medical, social worker, and psychological assessments to determine whether she meets the requirements, including being of childbearing age, being healthy enough to carry and give birth to a child, and being emotionally stable and mentally able to understand the requirements of the agreement. Lastly, the surrogate mother must be financially strong enough and must have family support since she can only become a surrogate for altruistic reasons in South Africa.

Requirements for the Commissioning Parents

A genetic link must exist between the commissioning parent and the child born from the surrogacy. As such, the gametes of at least one of the commissioning parents must be used in the IVF process. The couple or commissioning parent must be financially strong enough to ensure payment of the IVF process, assessments, legal fees, loss of earnings, medical costs, and life insurance of the surrogate mother. In addition, the couple must be financially able to provide for the child born from the arrangement.

At least one of the commissioning parents must be domiciled in the country at the time of signing the contract. The couple must undergo medical assessments to determine infertility and this condition must be irreversible. They must undergo psychological and social worker assessments to determine their emotional stability and mental capacity to understand the contract and being fit to care for the child.

Many other factors must be considered, like what happens to the child should one or both the commissioning parents pass away before the child is born. It is thus best to seek legal guidance on the setting up and confirmation of surrogacy motherhood agreements before seeking a surrogate or volunteering to be one. Get in touch with Adele van der Walt Incorporated for legal guidance.


*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 as at the date of publishing –  November 2019.