What is Surrogacy?

Surrogacy is the process whereby a person volunteers to carry the child of a commissioning parent or couple.

According to the regulations of South Africa’s Children’s Act No. 38 of 2005, the gametes of at least one of the commissioning parents must be used in the IVF process. There must thus be a genetic link between the commissioning couple or parent and the child.

The surrogate has no parental rights to the child, though she has the right to terminate the surrogacy for medical reasons. The commissioning parents still stay responsible for the costs related to the surrogacy, unless the surrogate terminates the pregnancy for reasons other than medical. To this end, the decision to terminate must be discussed with the commissioning parents.

The surrogate and her family do not have any contact rights with the child, unless so agreed in the surrogacy agreement. This agreement must first be confirmed by a High Court of South Africa before it is binding. Should the parties to the agreement commence with the IVF process, the surrogate becomes the legal parent of the child born from the surrogacy and the commissioning parents have no parental rights to the child, this will also have criminal implications for the medical practitioner, the intended parents and the surrogate.

The surrogate must be resident in the country at the time of signing the agreement. She must be of childbearing age and must be in good physical health. She must have at least one living child of her own and she must have given birth to a living child of her own before. She must be emotionally stable, must have financial and family support to ensure she does not become a surrogate for financial gain, and she must have written consent from her partner to enter the surrogacy agreement. She must be mentally able to understand the agreement and the consequences of it.

The commissioning couple must be infertile and the condition must be irreversible. At least one of the commissioning parents must be resident in the country when the agreement is signed. They must be fit to be parents and must be able to care for the child. They must have sufficient finances to pay for the surrogacy and all costs related to it. They too must undergo medical, social worker and psychological assessments.

Surrogacy is an expensive process, but it is a process that can provide an infertile couple with the joy of having a genetically linked child of their own. Call Adele van der Walt Incorporated for more information and legal assistance regarding surrogacies 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 – March 2019.