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Understanding Surrogacy Laws in South Africa

Understanding surrogacy laws in South Africa is crucial should you want to succeed in your application to a High Court for confirmation of a surrogacy agreement. Surrogacy is regulated by the Child Protection Act No. 38 of 2005 and its amendments. The Act came into force in 2010 and although surrogacy laws are strict, room for interpretation also exists.

One of the crucial elements of surrogacy law is that psychological evaluations must be done regarding the surrogate mother and the commissioning parents. An online evaluation will not suffice and the court expects detailed reports by experts.

In terms of surrogacy laws and regulations enforced in South Africa, ova may not be taken from a woman younger than 18 years of age for the purpose of artificial insemination. Accordingly, the preferred age for female donors is set between 21 and 34 years of age. According to the Southern African Society of Reproductive Medicine & Endoscopic Surgery Guidelines, a surrogate carrying the gametes of the commissioning parents should preferably be younger than 50 years of age.

If it is illegal to commercially benefit from brokering or participating in surrogacy in South Africa then why are there ads advertising for payment regarding donor eggs?

This is an obvious question, often asked by commissioning parents, but it stays illegal to pay for surrogacy other than acceptable expenses as provided in the Children’s Act. Advertising surrogacy for profit or compensation is thus illegal, but a female can offer or advertise to be willing to enter into a surrogate agreement that complies with all the legal requirements of the laws governing surrogacy in South Africa.

With some aspects still not clarified in the Children’s Act of 2005, it’s imperative not to attempt interpretation of the Act without legal assistance from experienced medical and family law attorneys.

Some of the issues that may arise are:

  • What are considered reasonable expenses?
  • What happens when the surrogate wants to terminate the pregnancy in case of a full surrogacy and what procedures must then be followed?
  • What happens when twins or triplets are born from the surrogacy and how should such be addressed in the surrogacy agreement?
  • What happens if the commissioning parents get divorced during the pregnancy period in the instance of a full surrogacy where the gametes of both commissioning parents have been used for the surrogacy?
  • What happens if the surrogate, in case of a partial surrogacy, doesn’t want to give up the child at birth?
  • Which parental rights must be stipulated in the agreement and can one stipulate visiting and contact rights for the surrogate if it is a partial surrogacy?

 

The above and many other issues must be discussed with an attorney before making a final decision to proceed with the process of finding a suitable surrogate. Commissioning parents, similar to the surrogate, must undergo financial, medical, and psychological evaluation before the in-vitro fertilisation can be done.

Indeed, no fertilisation may take place before a surrogate agreement has been confirmed by the High Court.  It’s not an easy process and the court doesn’t just give a stamp of approval without expert witnesses, documents, and reports to support such an agreement.

Before parents even consider the option, they should get legal guidance as to ensure that when they indeed proceed with surrogacy as an option, that they will understand all the rules and implications of the decision.

We, at Adele van der Walt Incorporated, work with medical law, surrogacy, personal injury and family law on a regular basis. We specialise in the above areas of the law and have extensive experience in such. Give us a call or email us to set-up an appointment for legal guidance to ensure that you can avoid the common pitfalls of surrogacy.

For more information on the legal arrangements for intending parents during a surrogacy, please contact Adele van der Walt Incorporated.