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Using a Surrogate Mother: What You Need to Know About the Legal and Emotional Aspects

The Children’s Act, which came into force in 2010, dedicates an entire section to surrogacy. With many couples struggling to conceive and carry a child to birth, surrogacy has become a viable alternative to adoption. Same gender couples who long for the joys of parenthood also benefit from the available surrogacy programmes in the country. Single males and females furthermore may want to have a child of their own and may struggle with successful carrying of the child to birth. Surrogacy in all these instances, provide for the opportunity to have a genetically related child.

Should you consider using a surrogacy mother, what you need to know as commissioning parent is briefly discussed below. Though surrogacy is legal in the country, it is only allowed for altruistic reasons. That being said, where eggs from a donor or sperm from a donor are stored in the sperm or egg bank of a fertility clinic, the donor can be compensated and the clinic will charge a fee for storage. As such, there are medical and legal costs that must be paid by the commissioning parents. The surrogate can be compensated for costs directly related to the fertilisation, tests, medical assessments, hospitalisation and transport or loss of income during the pregnancy.

The following are important legal requirements that you need to know:

  • The surrogate must reside in South Africa at the time of signing the agreement, must have given birth to at least one living child, and must have a living child of her own.
  • The surrogate’s partner must provide written consent to the surrogacy.
  • The commissioning parents must have proof of their inability to conceive/carry the child to birth.
  • The commissioning parents must have already tried the relevant IVF treatments.
  • At least one commissioning parent must reside in the country at the time of signing the agreement.
  • The gametes of at least one of the commissioning parents must be used.

The agreement must be approved by a High Court of the country before fertilisation can take place. Various assessments are performed to determine whether the surrogate meets the requirements of good medical health, psychological requirements and support structure. Commissioning parents must also undergo psychological, medical and social work assessments. It can be a costly process.

Other things that you need to know using a surrogate mother include:

  • It is vital that the surrogate mother has the required support structure as it is a lengthy process, which can also be very emotional.
  • She is not allowed to terminate the pregnancy for any reasons other than medical, unless she discusses her decision with the commissioning parents and can then be held responsible for the costs associated with the surrogacy.
  • There are no guarantees since unexpected complications with the pregnancy can lead to miscarriage.
  • Couples should take time to prepare emotionally.
  • It is imperative to stipulate the contact arrangements in the agreement as the surrogate and her family has no right to contact with the child unless so agreed in the surrogacy agreement.

It is best to seek legal guidance regarding the process and the agreement before searching for a surrogate mother.