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Why do I need a Surrogacy Lawyer?

The Children’s Act, which became effective in April 2010, outlines the legislation concerning surrogacy in South Africa. It stipulates that fertilisation may not commence before the confirmation of the surrogacy agreement by a High Court of South Africa.

With several legal requirements outlined regarding the surrogacy agreement and requirements for the commissioning parents and the surrogate, one cannot pursue surrogacy without the help of a qualified surrogacy lawyer.

The Act has been promulgated to protect the rights of the unborn child and with such the parental rights of the commissioning parents is discussed. The commissioning parents become the rightful parents with all parental rights and obligations upon birth of the child. However, should fertilisation commence before confirmation of the agreement by a High Court of the country, the agreement will be invalid and the surrogate will be the rightful parent.

For the High Court application you will need to submit not only the lawyer drafted surrogacy agreement, but also the required medical reports, psychological assessments, social worker’s report, proof of residence and identification documents, and an affidavit signed by the commissioning parents where relevant.

In terms of the surrogacy agreement specific requirements apply:

  • The agreement must be signed by the commissioning parents as well as the surrogate and her partner.
  • The required supportive documents must be submitted to the High Court along with the agreement.
  • The agreement must be presented to the High Court by qualified surrogate lawyers.

Specific requirements must be met by the surrogate parents:

  • One or both commissioning parents must be domiciled in South Africa at the time of signing the surrogacy agreement.
  • They must submit medical proof as to their infertility or inability to carry the baby to full term.
  • They must undergo psychological assessments to determine their emotional suitability for such a programme.
  • The gametes of one or both parents must be used for the fertilisation.
  • If both parents are male, they must submit proof that there will be female influence in the child’s life.

It’s important to note that the commissioning parents may not place advertisements to attract possible surrogates and may not offer commercial compensation for such services.

The surrogate must:

  • Have at least one living child at the time of the surrogacy;
  • Have successfully given birth to at least one living child;
  • Undergo the required medical and psychological assessments.

She may not accept any form of compensation other than for the medical and directly related expenses relevant to the surrogacy. The surrogate must hand the child over to the commissioning parents as soon as possible after birth. She and her partner have no rights to contact with the child after the birth other than according to the agreement with the commissioning parents. She may not terminate the pregnancy after the in-vitro fertilisation has taken place for reasons other than medical and as agreed upon with the commissioning parents. Note that this is a particularly complicated manner, best discussed with an attorney before signing of the surrogate agreement.

Two types of surrogacy exist:

  • Gestational
  • Traditional

Steps to Surrogacy

The first step to become commissioning parents or to offer your services for free as a surrogate is to contact a reputable surrogate lawyer in South Africa. The next step is to locate a suitable surrogate that understands the requirements of the law and that such surrogacy will not be for commercial gain. You will also need to locate a relevant fertility specialist that can assist with the in-vitro-fertilisation process.

The attorney will help you determine your suitability for such a programme. Note that there are many legal pitfalls and it is therefore best to discuss your intentions with a lawyer who will ensure that the process is completed according to the requirements of the Children’s Act of South Africa.

Contact the Adele van Der Walt team for professional legal assistance today.