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Surrogacy Agreement

6 Important Requirements for a Surrogacy Agreement in South Africa

Unlike with other contracts, the High Court of South Africa must first confirm the surrogacy agreement. As such, the agreement must meet every requirement of Section 19 of the Children’s Act, for it to be a valid contract.

A brief look at some of the issues that must be addressed in the agreement shows the complexity of the surrogacy relationship.

The Welfare of the Child

Adequate provision must be made in the agreement for the upbringing and care of the child. The child must be born in a stable home environment. The commissioning parents must thus be able to provide a caring environment. It is essential to stipulate the child’s position should one or both of the commissioning parents pass away before the child is born. The same holds true for a divorce before the birth of the child.

Biological Link Between the Parents and Child

There must be a genetic link with at least one of the commissioning parents. This means that the gametes of at least one of the commissioning parents must be used in the IVF process.

Infertility of the Commissioning Parents

The Court will not confirm the surrogacy agreement if the commissioning parents are able to conceive and give birth to a healthy living child of their own. In order to support their claim for infertility, they must undergo medical assessments to determine whether it is an irreversible condition.

IVF Only in the Stipulated Period

The surrogacy agreement must stipulate details such as the maximum number of IVF attempts. Accordingly, IVF may only be performed within the stipulated 18 months from approvement of the surrogacy agreement by the High Court.

No Commercial Gain

Surrogacy is only allowed for altruistic reasons in South Africa. The agreement must, therefore, stipulate exactly what is payable by the commissioning parents and make it clear that the surrogate is not to receive compensation for anything not allowed for by the Children’s Act of South Africa. It must be clear from the wording of the agreement that only the costs related to the fertilisation, hospitalisation, birth, and pregnancy are to be paid.

Competency of the Parties Involved

The surrogacy agreement must be signed by all parties to the agreement and must be concluded in the Republic of South Africa. The commissioning parents must be competent to act as parents, must understand the legal implications of entering into the agreement, and must understand their responsibilities regarding the surrogacy and care of the child.

The surrogate mother must be able to understand the legal consequences of signing the agreement, what the surrogacy entails, and what her rights and responsibilities are in terms of the agreement. She must be a suitable person to carry the child and must have a proven history of having given birth to a living child of her own. She must also reside in South Africa at the time of signing the agreement.

The above are only a few of the issues that must be addressed in the contract and requirements that the agreement must meet. Many other requirements must be met for it to be confirmed by the High Court of the country.

To this end, we recommend seeking legal advice and assistance in drafting the agreement and applying to the High Court of South Africa for confirmation of the surrogacy agreement.

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 – January 2019.