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Fertility Agreements

Surrogacy and Fertility Agreements: What are the Main Concerns?

Fertility agreements don’t involve non-living objects or property. Instead, these contracts affect living beings. Questions like, who will have full parental rights if a couple conceives a child through IVF treatments in which donor sperm or eggs have been used, what happens if a couple divorces after having given birth to a genetically linked child using the gametes of one of the parents, and other related concerns must be addressed in surrogacy and fertility agreements.

Fertility Agreements


Failure to address the mentioned and related aspects when drafting the contracts can cause tremendous distress to the parties involved should a dispute arise, even a few years down the line. In terms of surrogacy, medical law attorneys specialising in these types of agreements can answer all related questions of concerned parties through the initial consultations. They’re also adept at reviewing and interpreting existing contracts. It’s thus best to ask the specialist attorneys directly, as each couple, donor or surrogate’s situation is unique.

Typical questions surrounding surrogacy and fertility agreements include, but are not limited to:

  • Who gains full parental rights and control over the child born from a surrogacy should the commissioning couple divorce before the birth of the child?
  • Does the parent whose gametes have been used in the IVF treatments for surrogacy have more claim to full parental rights and control of the child than the one who is not genetically linked to the child?
  • How many IVF treatments are allowed?
  • What happens if a couple undergoes IVF treatments, and the one partner passes away – can the living partner use gametes from the deceased partner for surrogacy or conception through IVF?
  • For which costs can a commissioning couple compensate the surrogate?
  • What is seen by law as a reasonable time before the surrogate must hand over the child born from the surrogacy arrangement?
  • What can a couple do if the surrogate decides to terminate the pregnancy for non-medical reasons or threatens to do so?
  • How does the law define infertility?
  • How does the law define assisted reproduction?
  • Within how many days must the IVF process commence after the surrogacy contract has been signed?
  • How many fertilised embryos can be implanted at once in the case of assisted reproduction and what’s the maximum number for surrogacy?
  • With surrogacy, what happens to the child if both commissioning parents pass away before the child is born?

For answers on these and related pressing matters, schedule a consultation with Adele van der Walt Incorporated. With more than two decades’ experience in drafting surrogacy and fertility agreements, Adele van Walt Incorporated has the answers to help you make an informed decision.

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 – October 2021.