What Surrogacy Laws Need to be Considered

The Important Legal Aspects of Surrogacy in South Africa

As a couple, you may struggle to conceive or to carry a baby to birth. This may be the result of infertility of one or both partners, ill health on the part of the female, or serious health risk factors associated with underlying medical conditions experienced by the female partner. In another instance, you may be a male same-sex couple and therefore need a surrogate mother, or maybe you are a female same-sex couple, but both are unable to carry a child.

Each situation has its own legal pitfalls when considering surrogacy as a means to have a child of your own. It is therefore important to know what surrogacy laws need to be considered if you want to commission a surrogate to carry the child. The Children’s Act of 2005 is the Act that also governs surrogacy in South Africa. Accordingly, couples no longer have to go through the adoption process regarding a child born from a commissioned surrogacy.

Even before you commence with IVF of the surrogate, you will need to have the agreement confirmed by a High Court in South Africa. For this process you will need to make use of attorneys specialising in medical or surrogacy law, and who are able to represent you in court. The court will only confirm the agreement if all the legal requirements are met and after having reviewed the supporting documents. Should you commence with the IVF before the confirmation of the agreement, the child born from the surrogacy will belong to the surrogate mother and you will not have any parental rights.

The basic legal requirements to be met are briefly discussed below.

Commissioning Parents

• At least one partner’s gametes must be used in the IVF process.
• At least one of the commissioning parents must reside in the country at the time of signing the agreement.
• The commissioning parents must undergo medical, physical, psychological and social worker assessments.
• The surrogacy can only be for altruistic reasons. No compensation other than for costs directly associated with the surrogacy can be given to the surrogate mother.

Surrogate

• The surrogate must reside in South Africa at the time of signing the agreement.
• Her partner must provide written consent to the surrogacy.
• She must have given birth to at least one living child.
• She must have at least one living child.
• She has to undergo medical, social worker and psychological assessments.

Note that parental rights must be stipulated in the agreement. These rights include the surrogate’s right to contact the child and/or parents. In addition, it is also important to stipulate the compensation, the role of commissioning parents and terms upon which the pregnancy can be terminated.

The law makes provision for the surrogate’s right to terminate the pregnancy for medical reasons and after having discussed the issues with the commissioning parents. Many more aspects must be detailed in the agreement and it is thus best to seek legal counselling before approaching a potential surrogate candidate with an agreement.

It is imperative to understand what surrogacy laws need to be considered should you wish to go this route to have a child of your own. Get legal guidance from our attorneys to avoid costly legal pitfalls.