Legal Guidance on Surrogacy for Gay Parents

The South Africa Children’s Act 38 of 2005, Chapter 19, which came into force in 2010, has made surrogacy for gay parents a reality. In terms of the Act, the commissioning couple must be unable to become pregnant, carry a child to birth and to give birth to a child of their own.

The law furthermore stipulates that the gametes of at least one of the commissioning parents must be used in the IVF process. It is preferred that the gametes of both parents are used, but in the instance where it is impossible because of medical or sex reasons, such as with gay parents (with gay parents one or both intended parents material can be used).

Although it may not be easy to find a suitable surrogate in the country, because surrogacy is only allowed for altruistic reasons and is an expensive option, legal assistance and clinics are available to enable surrogacy for gay parents.

It should be noted that the commissioning parents must have medical evidence of their inability to give birth to the child, must have valid reason for commissioning a surrogacy and will need to pay the expenses associated with the surrogacy. Other requirements include:

You will sign a surrogacy agreement with the surrogate wherein you parental rights, conditions of the surrogacy, the rights of the child, compensation matters and rights of the surrogate will be stipulated. The agreement must first be confirmed by the High Court before any treatments can commence.

We help you in setting up the agreement, whether you have a private agreement with a surrogate or have approached a fertility clinic for assistance. Our experienced team assesses pitfalls and provide legal advice regarding aspects, such as rights of the surrogate to terminate the pregnancy, legal implications if there are twins and whether you want to allow contact between the surrogate and the child.

Contact us at Adele van der Walt Incorporated for legal assistance regarding surrogacy for gay parents.

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