Fertility Law

Legal Aspects of Fertility Law and Surrogacy in South Africa

Embarking on a fertility journey and choosing surrogacy can be a complex and overwhelming endeavour for families. Understanding the nuances of fertility law and surrogacy is imperative for those wishing to utilise the services of a surrogate mother. Before we explore the legal elements of fertility law, it is crucial to understand surrogacy in the broader context of family planning.

Understanding Surrogacy

Surrogacy can be understood as a "method of assisted reproduction where intended parents work with a gestational surrogate." The surrogate mother carries the child on behalf of the intended parents, known as the commissioning parents.

Two types of surrogacy exist, namely traditional surrogacy (where the surrogate's egg is used along with the intended father's sperm) and gestational surrogacy. Gestational surrogates have no biological link to the child that they carry. During gestational surrogacy, the fertilised embryo (containing the DNA of at least one of the commissioning parents) will be transferred to the surrogate, who will then carry and care for the baby until birth.

Surrogacy is intrinsically connected to fertility law since the surrogate mother will undergo artificial fertilisation to carry the child.

Commissioning parents will opt for surrogacy when they cannot carry a baby to term due to medical reasons. Surrogacy was regulated in South African law under the Children’s Act 38 of 2005. Let's explore the various stipulations in greater detail below.

For surrogacy to be legally sound, the following must apply:

• Commissioning parents must have a written, legally-binding agreement with the surrogate, and this must be made through the High Court.
• All parties must undergo psychological evaluations prior to the agreement being written.
• Once artificial insemination has occurred, the agreement cannot be terminated unless there is a medical issue.
• Surrogates cannot be paid for their services, and, as such, it must be done for altruistic purposes. However, commissioning parents can pay for medical treatment, hospital stays, and any loss of income.

Reach Out to Our Expert Legal Team

It is advisable to seek legal counsel when opting for surrogacy and trying to understand the specialised elements of fertility law. While fertility law can seem complex, it is so much simpler with a qualified medical attorney by your side. Seasoned legal professionals can ensure that all contracts are legally binding and can assist you in finding a viable surrogate. For more information on how we can help you navigate fertility law and surrogacy, contact us, and we will gladly advise you on the steps ahead.

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 – March 2023.