Aspects of Surrogacy Contracts in South Africa – Termination of Agreements

Surrogacy in South Africa is legal, provided that the requirements according to Section 19 of Children’s Act are met. One of the requirements stipulates that a surrogacy agreement must be in place between the commissioning couple and the surrogate, and the agreement must be approved by a High Court of the country before the artificial fertilisation process can be started. This agreement is a contract and thus legally binding on all parties to it.

According to the Act, surrogacy contracts are agreements between the commissioning parent/s and the surrogate mother, in which the surrogate mother agrees to artificial fertilisation with the purpose of carrying the child on behalf of the commissioning parent/s. She agrees to hand over the child to the commissioning parent/s when the child is born or within a reasonable period after birth. The commissioning parents are the legal guardians and parents of the child. The surrogate has no parental rights to the child. However, should the parties proceed with the artificial fertilisation of the surrogate before the contract has been confirmed by the Court, the agreement is invalid and cannot be enforced. In such an instance, the surrogate becomes the legal parent of the child.

Termination of the Agreement

Surrogacy contracts are complicated and apart from having to fulfil the requirements specifically pertaining to surrogacy agreements, the agreements must also fulfil the requirements of the law pertaining to valid contracts. It is thus essential to make use of an attorney for drafting the contract.

The gametes of one or both commissioning parents must be used for fertilisation and there must be a valid reason for not using the gametes of both parents. The law makes a distinction between the genetically connected surrogate and the surrogate with no genetic connection to the child when it comes to the right to terminate the contract. Before a period of sixty days has lapsed after the birth of the child from the surrogacy, the surrogate mother who has a genetic connection to the child (because her gametes have been used in the fertilisation process) can terminate the agreement.

Termination of the Pregnancy

The law makes provision for the right of the surrogate to terminate the pregnancy for medical reasons and after having discussed the issue with the commissioning parents. However, if the termination is for a non-medically related reason, the surrogate is accountable for the costs directly related to the surrogacy up to the time of pregnancy termination.

Consent of Partners

The surrogate’s partner must provide written consent for the surrogacy. Get professional legal advice from Adele van der Walt regarding the drafting, reviewing, submitting, and disputing of surrogacy contracts in South Africa.