Answers to Questions About Issues in Surrogate Mother Agreements

Some of the frequently asked questions about surrogacy in South Africa, including surrogate mother agreements, are briefly answered below.

Please explain the difference between traditional and gestational surrogacy?

With traditional surrogacy, the eggs of the surrogate mother are used together with the sperm of the male partner from the commissioning couple for the fertilisation of the eggs. The surrogate carries the baby for the commissioning couple. With gestational surrogacy, in-vitro fertilisation is used in which the eggs from a donor or intended mother are retrieved and the sperm of a donor or intended father are used for the fertilisation of the eggs. The fertilised embryos are inserted into the uterus of the surrogate mother who carries the baby to birth.

Does one have to adopt the child after birth?

No. The commissioning couple becomes the legal parents of the child upon birth, provided a surrogate mother agreement confirmed by a High Court of South Africa is in place and provided the fertilisation did not take place prior to such confirmation.

What if the surrogate mother wants contact with the child?

All contact rights must be stipulated in the surrogate mother agreement. Only rights stipulated and agreed to by all parties can be protected. This also extends to the surrogate’s family.

Who must sign the surrogacy agreement?

The intended parent/s and the surrogate together with her partner must sign the contract.

Can one pay a surrogate or fertility agency to bring together the surrogate and commissioning parents?

No. Surrogacy is only legal in South Africa if done for altruistic reasons. No agency can benefit commercially from facilitating the surrogacy matching, only an administration fee to be paid. The surrogate can only be compensated for costs directly associated with the surrogacy. However, the commissioning parents must carry legal fees and medical expenses.

How does the court determine whether the commissioning parents are fit to have a child?

The application for confirmation of the surrogacy mother agreement must include sufficient supporting documents and details to make it possible for the court to decide. The commissioning parents must provide full details of address, identity, financial position, criminal records, and backgrounds. A social worker and clinical psychologist must assess them. Their findings must be presented in report format to indicate the suitability of the commissioning parents. The commissioning parents must submit medical expert reports and records of their medical or biological difficulty or inability to conceive and carry a healthy child to birth.

How does the court know that the commissioning parents have not promised money or compensation other than for the direct expenses to the surrogate?

The court requires a founding affidavit from the commissioning parents detailing how they have heard about the surrogate, how they know her and why she is willing to go through the surrogacy process. This affidavit must be complete and must include details regarding the fertility clinic, attorney and surrogacy agency, or any intermediary and their role in the introduction and facilitating of the surrogacy process. It must include a detailed and very specific list of expenses as to prevent a situation where compensation is disguised as an expense.
The parties have to declare under oath that no other commercial agreement exists.

Make sure you understand the legal requirements for surrogate mother contracts. Make use of the professional attorney services offered by Adele van der Walt Incorporated to ensure compliance with all the requirements of the law as relevant to surrogacy in South Africa.