Surrogacy In South Africa

In today’s world 30 is viewed as the new 20 and 40 as the new 30, but what is happening on the outside of our bodies is very different from what is going on, on the inside. Fertility declines after 35 and then rapidly after 40. After years of trying to conceive, and after failed IVF treatments, surrogacy, although expensive, is an option to having a child of your own. Non-profit surrogacy is legal in South Africa however there are certain legal criteria, obligations and requirements which need to be met.Firstly, a Surrogate Motherhood Agreement needs to be drafted and confirmed by High Court. The commissioning parents, who are the future parents of the child, and the surrogate, the woman who carries the child on behalf of the future parents, sign the agreement, which has to be entered into in the Republic of South Africa. At least one of the commissioning parents must be domiciled in the Republic.The laws governing surrogacy are found in chapter 19 of the Children’s Act no 38 of 2005. Section 295 of the Children’s Act sets out the criteria that has to be in place for a court to confirm the agreement:

Examples of certain criteria for the commissioning parent/s are that they:

• have to prove with medical testimony that they are unable to give birth and the condition is permanent and irreversible;
• are competent to enter into the agreement;
• are suitable to accept parenthood of the child.

 

Examples of certain criteria for the surrogate are that she:

• is competent to enter into the agreement;
• understands the legal consequences of the agreement;
• is not using surrogacy as a source of income and only entered into the surrogacy agreement for altruistic reasons and not commercial gain;
• has had one pregnancy and one delivery;
• has a living child of her own.

 

Further examples of certain requirements are set out in section 293, section 294 and section 296 of the Children’s Act:

• Consent of husband/wife/partner: if a commissioning parent/surrogate is married or involved in a permanent relationship, the court may not confirm the agreement unless the husband/wife/partner has given his/her written consent and has become a party to the agreement.
• Genetic origin of child: For the agreement to be valid the conception of the child is to be effected by the use of the gamete (either of the two generative cells for human production) of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons then the gamete of at least one commissioning parent, or when the commissioning parent is single.
• Artificial fertilisation: No artificial fertilisation of the surrogate mother can take place before the agreement is confirmed by the High Court or after 18 months of the agreement being confirmed.

 

The legal effect of the agreement is set out in section 297 of the Children’s Act, in summary the child born of the surrogate is for all purposes the child of the commissioning parents; the surrogate is obliged to hand over the child as soon as is reasonably possible after birth and has no rights of care or parenthood of the child. Equally the child has no claim for maintenance from the surrogate mother. It is very important that parties adhering to the requirements and have the agreement approved by the court. Section 297(2) is very clear in that; any agreement that does not apply to the provisions of the act is invalid and the child will deemed to be the child of the women that gave birth to that child, namely the surrogate.

It is Illegal in South Africa for anyone to make a profit from a Surrogacy. The commissioning parent/s are prohibited from making payments, except as set out in section 301(2): compensation for expenses that relate directly to the artificial fertilisation and pregnancy of the surrogate mother, the birth of the child and the confirmation of the surrogate motherhood agreement; loss of earnings suffered by the surrogate mother as a result of the surrogate motherhood agreement; or  insurance to cover suffered the surrogate mother for anything that may lead to death or disability brought about by the pregnancy.

As stated above the commissioning parents are responsible for confirmation of the agreement and thus are liable for the legal fees related to the drafting of the agreement and application to the High Court. The application must provide proof that all the requirements are met, include a psychological and physical evaluations (the costs of which are for the commissioning parents) and include a written and signed contract explaining how medical expenses are to be paid, how IVF treatments will be done, and what kind of lifestyle the surrogate will have to maintain during pregnancy.I would advise that an attorney draft the agreement and do the application at court on behalf of the commissioning parents. Surrogacy is a brilliant route to parenthood for many future parents, however the reality is that to find a women who is medically, emotionally and psychologically fit to do a surrogacy is few and far between.