Setting Up Surrogacy Agreements and Contracts
Surrogacy agreements and contracts in South Africa are regulated by Chapter 19 of the Children’s Act 38 of 2005 and its amendments. The Act, which was enforced from April 1, 2010, seeks to protect the rights and interests of the child, commissioning parents and the surrogate. According to the Act, a surrogacy agreement must be drawn up and signed by the parties involved.
The High Court must approve the agreement before any treatments can commence. Failure to adhere to this regulation will nullify the legitimacy of the contract, meaning that the surrogate mother will become the rightful parent of the child.
It is thus advisable to make use of the services of an experienced surrogacy lawyer when it comes to the drafting of surrogacy agreements and contracts. The attorney submits the agreement to the High Court together with any relevant motivation.
The High Court will only confirm the agreement if specific conditions are met, including:
- The surrogate’s partner must provide written consent for the surrogacy.
- The surrogacy must be for altruistic reasons and there may thus not be any form of commercial benefit from the pregnancy; although reasonable compensation for expenses, loss of income, and medical costs are allowed.
- Supporting documents must be submitted indicating the physical and mental health of the surrogate.
- Supporting documents must be submitted indicating the inability of the commissioning couple to carry and give birth to a child of their own; the medical reasons should be permanent and irreversible.
- At least one of the commissioning parents must reside in South Africa at the time of signing the agreement.
- The surrogate mother must sign the surrogacy agreement in South Africa and must be in good physical, mental and emotional health.
- The surrogate must have successfully given birth to a living child of her own.
- The surrogate must have at least one living child.
The agreement stipulates important information, such as parental rights of the commissioning parents and conditions to which the surrogate must adhere to, including the stipulated medical examinations, refraining from usage of harmful substances and taking good care of her health. It stipulates the compensation regarding expenses and the rights of all parties involved.
We specialise in the setting up, reviewing and submission of surrogacy agreements and contracts in South Africa. Contact us for legal advice, guidance and assistance with surrogacy contracts.
