Surrogate Process

Important Legal Aspects of the Surrogate Process in South Africa

Before you commence with the surrogacy process, make sure you understand the legal requirements. Indeed, before the IVF process can commence, you need to have the surrogate motherhood agreement confirmed by a High Court of South Africa. This entails the submission of an application for confirmation together with supporting documents. The Court decides whether the agreement meets all the requirements for a contract and the requirements of the Children’s Act of 2005. In addition, the Court decides whether the parties to the agreement meet the requirements of the Children’s Act of 2005.

Once the Court has confirmed the agreement, the IVF process can commence. If the parties to the agreement commence with the IVF process before confirmation by the Court, the child born from the surrogacy will legally belong to the surrogate mother. Consequently, the commissioning parents have no rights to the child. Moreover, the parties to the agreement, as well as the medical professionals involved in the IVF process, can be prosecuted for non-compliance with the law.

The gametes of at least one of the commissioning parents must be used in the surrogacy process. This means there must be a genetic link from at least one parent with the child. In the instance of a single parent, the person must provide their gametes for the IVF procedures. If they are unable to do so, they cannot commission a surrogate and must then consider alternatives such as adoption if they want a child.

It is imperative to adhere to all the legal requirements regarding the surrogate process. The contract must be signed by all parties and at least one of the commissioning parents must be domiciled in South Africa at the time of signing the contract. The surrogate requires the written consent of her partner for entering the surrogate motherhood agreement.

The commissioning parents must be able to prove that they cannot conceive and give birth to a healthy child of their own. This is done by means of their medical history and medical examinations to confirm infertility or inability to carry a child to birth.

They must also be able to pay for the IVF process, legal costs, hospitalisation of the surrogate, all screenings, the court application, loss of earnings by the surrogate, life insurance, medical costs and attorney fees. They must be financially able to take care of the child born from the surrogacy. Get in touch with Adele van der Walt Incorporated for legal guidance regarding the agreement and court application in South Africa.

*Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant as at the date of publishing – April 2020.