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Things You Should Know Before Using a Surrogate Mother

Before you set out on finding a surrogate through a newspaper ad, you should become informed about the requirements for a surrogate mother. The law stipulates that surrogacy cannot be done for commercial gain, although this does not mean that the surrogate cannot be compensated for direct expenses. But then where do you go from here?

Where to look?

The best places to find suitable surrogates are fertility and surrogacy clinics in South Africa. You can also ask a friend or family member, but keep in mind that the person must be in good physical health, not addicted to any substances, and must be emotionally stable. The surrogate mother must be mentally able to understand what it entails and that she will have to hand over the child to you after birth.

Must you adopt the child?

No. According to South African law, there is no adoption process involved. The child is automatically yours upon birth, provided that you have a court confirmed surrogacy agreement in place.

What other requirements must the surrogate mother meet?

She must be a South African resident and citizen at the time of signing the agreement. She must have given birth to a living child of her own and without any extreme complications. She must still have at least one living child of her own, and her partner must give consent for the surrogacy.

What about the requirements for the commissioning parents?

The commissioning parents must have medical proof of their inability to conceive and/or carry and give birth to a living and healthy child. At least one of them must donate the gametes for the IVF process, and at least one must be a South African resident. They must be financially stable enough to carry the costs of surrogacy, including the court application, lawyer fees, IVF process, and compensation for the surrogate mother in terms of loss of income, medical costs, and hospitalisation fees.

Can the surrogate terminate the pregnancy even though it is your child?

Yes. The law provides that she has the right to terminate the pregnancy for medical reasons and after discussion of the issue with the commissioning parents. In this regard, she will not be liable for any of the costs associated with the surrogacy. If she chooses to terminate the pregnancy for reasons other than medical, she will be responsible for the costs of the surrogacy up to the time of pregnancy termination.

What happens if there are three or four children born from the surrogacy?

It is a complicated issue, but fortunately in South Africa normally only one or maximum two eggs are fertilised and implanted in the surrogate’s womb to avoid such situations. We recommend discussing such risks with our attorneys to help you avoid pitfalls regarding surrogacy.

Who can you contact for legal advice on how to become or to choose a surrogate mother and drafting the agreement?

Adele van der Walt Incorporated specialises in medical and surrogacy law within South Africa, including the handling of disputes, litigation, drafting and reviewing of surrogacy agreements, and handling the court application process.