Parental Rights
What Are Your Parental Rights To A Baby Borne Of A Surrogate Mother?
According to the Children’s Act 38 of 2005, which came into effect on 1 April 2010, ‘no surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person’. What this means for the commissioning parents is that they have solid parental rights relating to the baby borne of a surrogacy agreement, even before that baby is born.
One of the most important parental rights to come about as a result of the new laws is that, as the genetic material of a surrogate baby is made up of that of one or both commissioning parents, the new baby is legally the son or daughter of the commissioning parents from the moment he or she is born. In the past, new parents of a surrogate child had to undergo the sometimes lengthy and complicated adoption process in order to ensure that the baby carried their name and was legally recognised as their offspring, but they can now legally fill in the birth certificate, as with any other biological parents.
Additionally, the parental rights of the commissioning parents ensure that the surrogate mother is obliged to hand the child over to the commissioning parents as soon as is reasonably possible after the birth. Thereafter, the surrogate mother or her partner or relatives have no right of contact with the child unless provided for in the agreement between the parties; and no child borne of the agreement has a claim for maintenance or of succession against the surrogate mother.
Contact Adele van der Walt Incorporated for expert advice on surrogacy and your parental rights in South Africa.
For more information on this subject, please give us a call at (SA) or e-mail us at susann@avdw.co.za
