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The Legal Aspects of Surrogacy in South Africa

You have decided on surrogacy as the solution for having a baby of your own after years of fertility treatments, IVF procedures, and failed pregnancies. Or, you are a same sex couple that wants a child that is genetically related. A third scenario may apply to you – that of being a single person who’s only hope of ever having a genetically related child lies with surrogacy because you are unable for medical reasons, to carry a child to birth.

It is a big step and one that can lead to tremendous joy. However, you need to consider the legal aspects of surrogacy first. This is not an attempt to discourage you. If anything, information is power and helps you to avoid costly mistakes and to stay on the right side of the law. As such, get in touch with our lawyers for more assistance with the surrogacy agreement and court application.

Who can be a surrogate?

A family member, friend or even a stranger can fulfil the role of surrogate, provided they are healthy, able to carry the child to birth, mentally and emotionally stable, and reside in South Africa at the time of signing the agreement. The above implies that the person will not be addicted to any drugs or substances that can cause harm to the child. They should be at least 21 years of age and within the child bearing age group.

The law stipulates that they must undergo certain assessments, such as medical testing, psychological screening and social worker assessments. It is imperative that the surrogate will have the necessary support network during the surrogacy period, since it is an emotional and physically demanding process.

The surrogate may not commercially benefit from the process other than receiving compensation for income loss if she doesn’t work during the pregnancy, her medical costs, travel costs and legal expenses. You will have to carry all the expenses directly related to the surrogacy.

What if the Surrogate mother decides to terminate the pregnancy?

The Surrogate mother isn’t allowed to terminate the pregnancy for any reason other than medical. If she does decide on pregnancy termination because of medical reasons, then you will still be financially responsible for the costs. However, should she decide to terminate the pregnancy for another reason, she must first discuss the issue with you.

What never to do

Never start the IVF process without having a written surrogacy agreement in place. Note that this agreement must be confirmed by a High Court of the country before the fertilisation process can start. If you are overeager and start the process before approval from the High Court, you will lose all rights to parenthood regarding the child born from the surrogacy. The Medical Practitioner will be in contravention of the Act and will face legal charges.

Other screenings

As commissioning couple or parent you must also undergo medical, psychological and social work screenings. The results are used as supportive documents for the court application. You or your partner must reside in the country at the time of signing the agreement and at least one of you must provide the gametes for the surrogacy.

Feel free to get in touch with our lawyers to learn about the above and other legal aspects of surrogacy in South Africa.