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Surrogacy Process

How the Surrogacy Process Works in South Africa

Once the legal requirements have been met and the application to court submitted, the parties to the surrogacy agreement await court confirmation of the surrogacy agreement. The surrogacy process commences once the approval for the agreement is received.

The next phase entails medical testing and treatments. Where the female partner is infertile, the gametes of the male partner are donated for fertilisation of the surrogate. This is a medical process. Where the biological parents are both fertile, but unable to carry the baby to birth, both the parents donate their gametes for in vitro fertilisation (IVF). In this regard, the surrogate only carries the baby and there is no biological link to the child.

The medical procedures can be uncomfortable and the surrogacy process is expensive, but the reward of having a genetically linked child is what makes the process worthwhile. Note that the process takes time and involves from finding a suitable surrogate to attending assessments to determine the emotional, mental, and physical health of the surrogate and similar assessments apply to the commissioning parents. The commissioning couple must also prove their inability to carry the child to birth.

Only altruistic surrogacy is allowed in South Africa and all the requirements must be met for approval by the court. Failure to get the necessary court approval makes the surrogacy illegal. Should the parties commence with the surrogacy process before court confirmation of the agreement, the failure to comply could result in a criminal offence punishable by a fine and the surrogate will consequently become the rightful parent of the child.

In terms of the IVF process, the surrogate has to undergo IVF treatment that matches her cycle with the intended egg donor. The fertilised eggs are then transferred to the surrogate’s womb for successful implanting of the embryos. More than one attempt may be needed.

IVF is not a painful experience, though the surrogate also has to receive hormone injections, which can be discomforting. Four to five doctor visits are needed through the IVF period.

The commissioning parents must pay the costs of the IVF treatments, all assessments, hospitalisation, transport costs of the surrogate, compensation for loss of income during the pregnancy, and the legal costs. Only compensation directly related to the costs of the surrogacy are allowed.

Once the baby is born, the commissioning parents are the rightful parents and, unless otherwise stipulated in the surrogacy agreement, the surrogate and her family don’t have any contact.

Note that the surrogate must reside in South Africa at the time of signing the agreement, must be healthy and must have given birth to a living child before. She must have at least one living child and her partner (if any) needs to provide consent for the surrogacy. At least one of the commissioning parents must reside in the country at the time of the agreement and the gametes of one or both parents must be used for the surrogacy.

Seek legal guidance regarding the agreement and compensation related to the surrogacy process. For more information, please feel free to contact our team at Adele van der Walt Incorporated.