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Surrogacy Law

Requirements for Surrogacy in South Africa

Surrogacy law is regulated by the Children’s Act of South Africa. It is imperative to study the Act and to seek legal guidance even before you offer to be a surrogate or commission a surrogacy. Unlike many other countries where surrogacy for commercial gain is allowed, surrogacy law in South Africa strictly prohibits any commercial benefit on the part of the surrogate or any party arranging the surrogacy.

According to South Africa’s surrogacy law, the commissioning parents are responsible for payment of costs related to the surrogacy. Such costs include the legal fees associated with the contract drafting and the application to the High Court for confirmation of the agreement, the medical costs related to the surrogacy, and loss of earnings on the part of the surrogate.

According to the surrogacy law, the commissioning parents must meet certain requirements:

  • Documented proof of inability to give birth to a child and that the condition is irreversible.
  • Must be mentally able to understand the consequences of entering into the surrogacy agreement,
  • Must be able to take care of the child and must meet the requirements for being suitable parents.
  • At least one of the commissioning parents must be resident in South Africa at the time of signing the agreement.
  • There must be a genetic link between at least one of the parents and the child to be born from the surrogacy arrangement.
  • The commissioning parents must be able to pay for the costs associated with the surrogacy.
  • They need to undergo medical tests to support their claim of being infertile.
  • They must undergo psychological and social worker assessments.

The law also stipulates the requirements for the surrogate. Accordingly, the surrogate must:

  • Have the written permission of her partner to enter the agreement.
  • Have given birth to a living child of her own before.
  • Have at least one living child.
  • Be resident in South Africa at the time of signing the agreement.
  • Have sufficient financial and family support.
  • Be healthy and able to carry the child to birth.
  • Be mentally able and competent to enter into the agreement.
  • Be psychologically stable.
  • Be of childbearing age.
  • Not enter the arrangement for financial gain.
  • Undergo medical, psychological and social worker assessments.

The law stipulates that the agreement must include details regarding contact rights, the right to terminate the pregnancy for medical reasons, the total number of IVF attempts, how compensation for legal fees and loss of earnings takes place, and many other important aspects, best discussed with an attorney specialising in surrogacy law.

Call Adele van der Walt Incorporated for guidance, assistance with the drafting and reviewing of the agreement, and the application for confirmation of the 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 – February 2019.