Surrogacy Agreements

Why You Cannot Take Shortcuts with Surrogacy Agreements in South Africa

Surrogacy agreements must first be confirmed by a High Court of the country in order for it to be valid. If you are thus contemplating surrogacy as a means to have a genetically linked child, it is imperative to seek legal advice before you take any steps in finding a suitable surrogate.

Indeed, the surrogate can be someone you know or someone you have yet to meet. The important considerations are whether she meets the requirements for a surrogate in South Africa. The High Court has the final say over all surrogacy agreements and if she does not meet the requirements, your agreement will not be confirmed by the High Court.

Requirements for the Surrogate

She must be healthy and be able to carry and give birth to a child. She must have at least one living child of her own and documented proof of having given birth to a healthy child before. She must be a resident in the country at the time of signing the agreement, must be of childbearing age, and must have sufficient financial support as proof that she is not entering the agreement for financial gain. She needs the written consent of her partner to enter the agreement. She must be psychologically and mentally stable, and also able to understand the agreement.

Confirmation of Agreements

Note that the IVF process may not commence before confirmation of the agreement by the High Court. The law provides that any surrogacy agreements not confirmed by the High Court are invalid. Indeed, should you proceed with the IVF process before confirmation of the agreement, you and the medical practitioner involved in the IVF process can be legally prosecuted. The surrogate becomes the rightful parent of the child even though the child is genetically linked to the commissioning parents. As such, everyone involved must understand the legal requirements surrounding surrogacy agreements and adhere to such as to avoid legal prosecution, financial losses, and the risk of losing parental rights to the child born from the surrogacy.

Details to Cover

Such agreements must include details regarding the termination of the pregnancy, the upbringing of the child, compensation for loss of earnings and costs directly related to the surrogacy, and the number of IVF attempts. It is imperative that all required aspects are covered. It is, therefore, necessary that an attorney is involved when the surrogacy agreement is drawn up before the application is brought to the High Court.

Requirements for the Commissioning Parents

There are also certain requirements that the commissioning parent(s) must meet. For one, they must be able to prove that they are medically unfit to conceive, carry and give birth to a child. They must be mentally capable to understand the agreement and must be able to care for the child. The gametes from one of the commissioning parents must be used in the IVF process. Since there are financial costs involved in the process, they must have the necessary finances to pay for the process, as well as the legal proceedings, and then taking care of the child.

Before commencing with the surrogacy, you must first seek legal advice from an attorney specialising in surrogacy agreements. Call Adele van der Walt Incorporated for professional assistance.

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 – February 2019.