Becoming a Surrogate Mother
What You Need to Know About Becoming a Surrogate Mother in South Africa
Current adoption legislation makes it difficult for older couples to adopt babies. Surrogacy is a viable option for such infertile couples, provided they have proof of their infertility and inability to carry a child to birth.
If you have been approached by a friend or family member for becoming a surrogate mother to carry their child to birth, make sure you understand the legal and medical requirements. For one, you will not be able to financially benefit from the surrogacy agreement, as commercial gain from surrogacy is illegal in South Africa. You will thus do it only for altruistic reasons.
The commissioning couple is responsible for the payment of all costs related to you becoming a surrogate mother for them. These costs include medical expenses, assessments, compensation for loss of earnings for the period that you cannot work while pregnant, hospitalization, travel costs, insurance, and legal fees. The court must be satisfied that you are not becoming a surrogate mother for financial gain. To this end, you must undergo a social worker assessment to determine your financial and family support structure. It goes without saying that if you struggle financially that it will be difficult to prove that you are not becoming a surrogate mother for financial gain.
Another requirement according to Section 19 of Children’s Act No 38 of 2005 is that you must be domiciled in South Africa at the time of signing the surrogacy agreement. You must be willing to hand over the child to the commissioning couple as soon as reasonably possible after birth. Indeed, the commissioning couple is the rightful parents of the child from the moment of birth. You and your family have no contact rights to the child, unless so agreed and stipulated in the surrogacy agreement.
The law stipulates that you must have given birth to a living child before and must have at least one living child of your own. You must be of child-bearing age. If you are 45 years old, you thus do not qualify. The same applies if you have just finished school and have not yet given birth to a living child of your own. The law protects all parties to the agreement, but mostly the interests of the child.
If you are in a relationship, you need the written permission of your partner if you intend on becoming a surrogate mother. The court can, at its discretion, set aside the requirement if your partner unreasonably denies permission. It is, however, best to discuss the issue with an experienced surrogacy attorney.
You must undergo medical assessments to determine your health and ability to safely carry and give birth to a living child. You will also need to undergo a psychological assessment to determine your mental capacity to understand the contract and implications of the surrogacy. The assessment is also necessary to determine your emotional state, as it can be difficult to let go of the baby once the child is born.
You have the right to terminate the pregnancy for medical reasons after discussing such with the commissioning couple. Should you terminate the pregnancy for reasons other than medical, then you become liable for the payment of all costs associated with the surrogacy, including legal fees, IVF treatments, assessments, and more.
Although the requirements are strict for becoming a surrogate mother in South Africa, it can be done, and your willingness makes it possible for the commissioning couple to have a genetically linked child of their own.
Call Adele van der Walt Incorporated for assistance regarding the legal aspects of becoming a surrogate mother in South Africa.
Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant to the date of publishing – August 2019.