Important Legal Aspects to Consider Regarding Surrogacy
It is imperative to be informed about the legal aspects of surrogacy in South Africa if you plan to enter into a surrogacy agreement. The surrogacy agreement must be formal, in writing, signed by all relevant parties and confirmed by the High Court of South Africa. Various legal requirements must be met, however, before the High Court will confirm the agreement.
The Children’s Act No. 38 of 2005 Chapter 19 stipulates the legal aspects of surrogacy. No artificial fertilisation of the surrogate may take place prior to the confirmation of the surrogacy agreement by the High Court or after a period of more than 18 months has passed since the confirmation of the said agreement in South Africa.
Status of the Child
If the agreement is invalid and the surrogacy proceeds, the child born from the surrogacy is the child of the surrogate mother. If the agreement is valid, the child born becomes the child of the commissioning parent/s from the moment of birth and there is no need for an adoption process.
According to the Children’s Act, the surrogate must hand the child to the commissioning parent/s as soon as medically and reasonably possible and she and her family have no parental rights or right to care for the child. The child born from the surrogacy has no rights to succession against the surrogate or her family. The surrogate and her family, unless otherwise stipulated in the surrogacy agreement, have no right to contact the child and the child cannot later in life claim maintenance from the surrogate.
Right to Termination of the Agreement
The agreement may not be terminated after artificial fertilisation has taken place unless the surrogate is family related (they have contact on a regular basis) by the expressed desire of the surrogate and after discussion with the commissioning parents. If the agreement is terminated for reasons other than medical ones, the surrogate is liable for the expenses up to termination of the pregnancy directly related to the surrogacy.
One of the important legal aspects of surrogacy in South Africa is the right to compensation for expenses. Note that any commercial gain from surrogacy is strictly prohibited in the country. That being said, the commissioning couple must pay for the confirmation of the agreement, the artificial fertilisation, hospitalisation, doctors’ visits, medical tests, psychological assessments, and social worker costs, in addition to legal fees. They are also responsible for compensating the surrogate for loss of earnings as a direct result of being unable to work or having to be hospitalised, the insurance costs related to the surrogacy and costs such as travelling to and from the medical facilities.
The privacy of the child, the commissioning parents and the surrogate and her family is protected by the Children’s Act. Accordingly, their identities including the sperm or egg donor’s identity, where relevant, may not be published unless expressed permission has been given in writing and no person may publish the identity of the child born from the surrogacy or facts about the person.
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