Children's Act 38 of 2005 - Chapter 19
When the Children’s Act 38 of 2005 was promulgated on the 1st of April, 2010, it greatly affected the way in which Surrogate Motherhood Agreements would be drawn up in South Africa. Before this the agreements were generally done in an informal or verbal manner, but now with the new South African law in place, surrogacy agreements are handled in a much more orderly fashion.
Before such an agreement can be made all parties involved would have to go for medical- and psychological evaluation. The surrogate mother must have had at least one successful pregnancy and birth, and must be the parent of at least one normal, living child. When the agreement is presented in the courts of South Africa the surrogate mother must state whether or not she’s married or in a permanent relationship. Her husband, wife or partner will need to give their written consent that they are aware and will form part of the agreement.
The in-vitro fertilisation process may not begin until the Surrogate Motherhood Agreement has been confirmed by the court. While the commissioning couple may pay for expenses related to the surrogacy process, the surrogate mother may not receive any form of compensation, whether in cash or kind, at any time as this will be considered a criminal act. Moreover, the surrogate mother may only enter into the agreement for altruistic reasons and not with the intention of using the surrogacy as a source of income or for commercial purposes.
In Surrogacy arrangements where the Surrogate Mother’s eggs were used, she will have the right to terminate the agreement within a 60 day period after giving birth. Consequently this will make her the legal parent of the child and she will be able to keep the baby born from the surrogacy. When a donor’s eggs were used, however, the commissioning couple will automatically become the legal parents of the child, eliminating the necessity to adopt the child.
Lastly, no surrogacy agency or any other person may divulge the identity of another person willing to enter into a surrogate motherhood agreement with the intention to gain compensation for said information.
For more information on this subject, please give us a call at (SA) or e-mail us at susann@avdw.co.za
