Surrogate Motherhood Agreement

Essential Requirements of the Surrogate Motherhood Agreement

Before entering a surrogate motherhood agreement, make sure you understand the legal requirements for surrogacy. The Children’s Act of 2005 governs surrogacy in South Africa. We briefly look at some of the requirements set out in the act below.

Requirements for the Surrogacy Agreement

For the motherhood agreement to be legally binding and valid, it must be confirmed by a High Court of the country. The applicants must submit documents to prove the infertility of the commissioning parent(s), and results of the medical examinations, social worker assessments, and psychological evaluations. Once confirmed, the applicants can proceed with the IVF process. All parties to the contract must have signed it.

Requirements for the Commissioning Parents

The gametes of at least one of the commissioning parents must be used in the IVF process. If it is a single parent, then the gametes of that parent must be used. There must thus be a genetic link between the parent(s) and the child.

At least one of the commissioning parents must be a resident in South Africa at the time of signing the motherhood agreement.

The commissioning parent(s) must be able to pay for the cost of the court application, drafting of the contract, the assessments, IVF process, insurance, travel costs, medical expenses, and loss of earnings (where relevant). They must be able to take care of the child, and the court must be satisfied that they are mentally, emotionally, and financially able to raise a child.

Requirements for The Surrogate

She must be in good physical health, be of childbearing age, and be able to carry and give birth to a child. She must have given birth to a child before, and must have at least one living child at the time of signing the motherhood contract. If she is in a relationship, she needs the written consent of her partner to enter the surrogacy contract. She must be resident in the country at the time of signing the contract.

Requirements Regarding Compensation

The surrogacy may not be for commercial gain. As such, the court must be satisfied that the surrogate has financial and family support, and thus does not offer her services for commercial gain. All the costs that will be covered must be stipulated in the contract.

Other Requirements

The surrogate must agree to give the child to the commissioning parents as soon as possible after birth. Unless otherwise stipulated in the contract, she and her family members do not have any contact rights to the child. She has the right to terminate the pregnancy for medical reasons after discussion with the parents. If she decides to terminate the pregnancy for non-medical reasons, she is responsible for all costs related to the surrogacy.

For legal help regarding the drafting of the surrogate motherhood agreement, call Adele van der Walt Incorporated.

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 – July 2019.