What It Means To Be a Surrogate Mother in South Africa
A surrogate mother is a woman that agrees to carry and give birth to the baby of a couple. The gametes used in fertilisation may come from one or both the commissioning parents. In South Africa, surrogacy is regulated by the Child Protection Act and may not be offered for commercial gain. The surrogate mother, however, is entitled to compensation for costs directly related to the surrogacy:
- Medical expenses such as doctor visits, the actual birthing process, fertilisation and any examinations related to the surrogacy.
- Loss if income if she is unable to work through the pregnancy.
The commissioning parents pay for the attorney fees. Unlike in many other countries where surrogacy is often done for money, in South Africa, it is done for altruistic reasons. It is a beautiful gesture to assist an infertile couple in getting their own child. Because the commissioning couple becomes the legal parents upon the birth of the child, no adoption procedures are required.
Though it is a fulfilling and emotionally rewarding experience, considered an act of love, surrogacy can be emotionally draining if the surrogate mother forms a too close bond with the unborn child. She cannot refuse to give up the child with birth since there is an agreement in place and she no longer has any rights to contact with the child unless so agreed upon with the commissioning parents.
The process itself can be emotionally and physically tiring since the surrogate must undergo a physical and emotional assessment to determine whether she qualifies as emotionally stable and physically healthy enough to carry the baby full term and to give birth. The actual pregnancy can also pose a health risk and as such it is imperative that the surrogate is healthy and strong enough to go through the process.
To prevent situations where the surrogate can develop an overly emotional bond with the unborn child, the law requires that she must already have given birth to a child and that she must have at least one living child of her own.
Since the surrogate’s partner and family are also affected by her decision to carry a baby for another couple, the law requires the consent of her partner. Where the partner refuses such consent for unreasonable reasons, the court may put the consent aside. This, however, is subject to several conditions and the court’s judgment.
Since surrogacy for payment is such a controversial topic and to avoid a situation where a child may be born to a couple outside South Africa and then used for the purpose of getting South African citizenship, the law requires that at least one of the commissioning parents must reside in South Africa at the time of signing the surrogacy agreement.
Child trafficking is a major problem worldwide. The law in South Africa seeks to protect the rights of the child and thus stipulates that the surrogate must reside in the country, and as mentioned, at least one commissioning parent. This helps to minimise loopholes which can be used to birth a child on demand for a foreign couple planning on selling the child into a trafficking ring.
Since there are many infertile couples in South Africa and not all wish to adopt, the law makes provision of altruistic surrogacy, but close monitoring of the process is required to protect the child. As such, the stigma surrounding surrogacy experienced overseas is eliminated in South Africa, enabling couples to seek surrogacy as a route to fulfilling their dream of having a child of their own.
To further protect the child, the law states that the commissioning parents must provide medical proof of their infertility or inability to carry the child to birth. This helps to prevent situations where couples simply misuse the opportunity to get a child because they don’t want to go through a pregnancy.
Fortunately, not only the rights of the child, but also those of the surrogate mother are protected. Though termination of the pregnancy is not allowed unless for medical reasons and as discussed with the commissioning parents, the surrogate will become the rightful parent of the child, should fertilisation take place before the agreement has been confirmed by a High Court of the country. This in effect, protects surrogates against unfair agreements or forced surrogacy.
In South Africa, surrogacy agreements must be signed by all the relevant parties and must be drawn up by surrogate or family law attorneys such as the team of Adele van der Walt Incorporated. Contact us today for an appointment to discuss the legal procedures and pitfalls should you consider becoming a surrogate mother.