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Surrogacy Law in South Africa

How Important is Compliance with Surrogacy Law in South Africa?

The Children’s Act of 2005, apart from regulating and protecting the rights of children, is also the most important Act when it comes to surrogacy law in South Africa. It is thus the first piece of legislature to study if you want to ensure that you comply with the requirements of the law if you plan on entering a surrogate motherhood agreement in South Africa.

Importance of Court Confirmation

According to surrogacy law in South Africa, the surrogate motherhood agreement must first be confirmed by a High Court of the country before the IVF process can start. Failure to adhere to this requirement can lead to criminal charges against the parties involved, including the medical professionals performing the IVF procedures.

The child born from the surrogacy where the agreement has not been confirmed by a High Court of South Africa is legally the child of the surrogate, and the commissioning parents have no parental rights to the child.

With such serious consequences for failing to adhere to the confirmation requirement, it is thus imperative to seek legal guidance in drafting a surrogate agreement in compliance with the legal requirements for a contract and according to the stipulations of the law that forms part of the Children’s Act.

Keep in mind that the application for confirmation of the agreement must be handled by an attorney familiar with the surrogacy law requirements of South Africa.

Important Requirements

At least one of the commissioning parents must be genetically linked to the child born from the IVF process. This means the gametes of at least one of the commissioning parents must be used. If a single parent is infertile and unable to give birth to a child of her own, she cannot have a surrogate carry a child on her behalf since her gametes must be used for the IVF process.

At least one of the commissioning parents must be domiciled in South Africa at the time of signing the agreement. An overseas couple can thus not commission surrogacy in South Africa unless one of them lives in the country when they sign the agreement.

Surrogate motherhood is only allowed for altruistic reasons in South Africa. A person can thus not become a surrogate mother for financial gain. The commissioning parents must pay the legal costs, medical expenses, life insurance for the period of surrogacy, contract fees, and compensation of loss of earnings for the period that the surrogate is unable to work.

The surrogate mother must meet strict requirements such as being of child-bearing age and in good health. She must have given birth to a living child of her own before and must have at least one living child. She must be domiciled in the country at the time of signing the agreement. She must be mentally able to understand the terms of the contract and the consequences of becoming a surrogate. The surrogate must be financially strong enough or have adequate financial support to prevent a situation of someone being forced into surrogacy for financial gain.

Understanding the requirements and procedures regarding surrogacy agreements in adherence with the legislative requirements in South Africa is therefore imperative if you want to enter into such an agreement. Get legal advice from Adele van der Walt Incorporated to ensure you comply with the requirements of the law in this regard.

*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 as at the date of publishing – April 2020.