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Surrogacy Motherhood Contracts

Important Legal Requirements for South African Surrogacy Motherhood Contracts

The Children’s Act of South Africa stipulates that the High Court of South Africa must confirm surrogacy agreements. All surrogacy motherhood contracts must be in writing and must meet the legal requirements of contracts.

Surrogacy motherhood contracts must clarify aspects such as timeframe, responsibilities of the parties to the agreements, payment of legal fees, and more. The Children’s Act provides the requirements, which must be met for such contracts to be enforceable.

Accordingly, all parties to the surrogacy agreement must sign the contract. At least one of the commissioning parents must be domiciled in the country at the time of signing the agreement and the surrogate must be domiciled in South Africa.

The gametes of at least one of the commission parents must be used in the IVF process to ensure a genetic link with the child carried by the surrogate. The IVF process may not commence before confirmation of the agreement by the High Court of the country.

In instances where parties fail to have the surrogacy motherhood contracts confirmed by the court before commencing with the IVF process, the law provides that the surrogates become the rightful parents. In addition, such arrangements are illegal.

The surrogate’s spouse or partner must provide written consent to the surrogacy. The agreement also needs to state the provisions for contact and care of the child. It should, furthermore, stipulate what the child’s position is should the commissioning parent(s) pass away or separate before the child is born.

Note that unless the sterility of the commissioning parent(s) is irreversible, the court will not confirm the agreement. However, the law does make provision for same sex couples and single parents to enter into surrogacy arrangements, provided there is a biological link with the child from at least one of the commissioning parents.

The agreement also needs to state clearly that the arrangement does not involve compensation or the promise of such to the surrogate with exclusion of compensation directly related to the medical procedures, pregnancy, birth, legal fees, loss of earnings, and insurance for cover regarding disability, or death as the result of the surrogacy.

The Children’s Act stipulates that the commissioning parent(s) must be competent to enter into such an arrangement and must be able to understand the legal consequences of the contract, as well as the responsibilities related to such. The surrogate must be a suitable person for surrogacy, able to understand the consequences of entering into the arrangement and what her responsibilities and rights are.

Many other requirements must be met. As such, it is essential to seek legal advice regarding surrogacy motherhood contracts before commencing with any type of arrangements to the effect.

Information in this article is not intended as legal advice and is only for informational purposes. Please seek legal guidance from Adele van der Walt before relying on this information to make any legal decisions.