Consent of Spouse
Consent Of Spouse In Surrogacy Agreements
The Children’s Act 38 of 2005, which came into effect on 1 April 2010, sets out the legislation and process involved in surrogate parenthood in South Africa. These laws include the requirement of a written surrogacy agreement, to be signed by all parties involved, with clear provisions regarding the consent of spouse or partner, which include:
- Where a commissioning parent is married or involved in a permanent relationship, the court may not confirm the agreement unless the husband, wife or partners of the commissioning parent has given his or written consent to the agreement and had become a party to the agreement;
- Where the surrogate mother is married or involved in a permanent relationship, the court may not confirm the agreement unless her husband or partner has given his or her written consent to the agreement and has become a party to the agreement;
- Where the husband or partner of a surrogate mother who is not the genetic parent of the child unreasonably withholds his or her consent, the court may confirm the agreement.
Along with the consent of spouse required, it is important to note that the gametes (reproductive cells) of both commissioning parents are to be used in the surrogacy process. Only in the event that one of the parents is able to prove that he or she is unable, for valid reasons, to provide his or own gametes to the process, will the Court waive this provision, and then only if the gametes of at least one of the commissioning parents is utilised.
It is important to note that only after the High Court has approved a properly drawn up surrogacy agreement, signed by all parties and clearly delineating rights such as consent of spouse or partner, is the in vitro process able to commence.
Contact Adele van der Walt Incorporated, experts in surrogacy and related matters in South Africa, for more information regarding consent of spouse and the other provisions of a surrogacy agreement.
For more information on this subject, please give us a call at (SA) or e-mail us at susann@avdw.co.za
