You may be considering a surrogate for different medical reasons, or it could be because you’ve been struggling to fall pregnant through assisted reproduction techniques like IVF.
Surrogacy gives people who might be ineligible to adopt a child because of their age or because they’re single and same-sex couples a shot at parenthood.
It might not be as prevalent as it is in the USA, but more South Africans are making enquiries and engaging with the practice more and more.
The legislation that governs surrogacy in the country, the Children’s Act, is, however, very strict and clear about what is permissible.
“An important aspect of statutory compliance with the Children’s Act is that all the parties will need to conclude a written agreement with each other before embarking on the process of surrogacy,” explains Adams & Adams Attorneys family law expert Shani van Niekerk.
“This agreement must be confirmed by the High Court and be made an Order of Court prior to the surrogate being inseminated.”
Van Niekerk unpacks the important legal issues to remember when you’re considering going the surrogacy route.
Surrogate mothers can’t be in it for the money
A surrogate mother’s motivation to assist commissioning parents must be altruistic. She may, as such, not receive financial benefit for being a surrogate, other than being reimbursed for her expenses, the ambit of which is regulated by the Children’s Act and include things like medical expenses or loss of income due to her not working.
At least one of the commissioning parents must be the biological parent of the child-to-be
This means that one of the commissioning parents would need to provide either an egg or sperm for purposes of the artificial fertilisation. It entails that where one of the commissioning parents is conception infertile (does not have viable eggs or sperm), then donor eggs or sperm may be used, but only if one of the commissioning parents utilises his/her egg or sperm with the donor’s material for the artificial fertilisation process.
All parties must reside in SA when the agreement is concluded
If a surrogate mother is married or in a relationship, her husband and/or partner should also agree to her becoming a surrogate.
This requirement also applies to a single commissioning mother who is in a permanent relationship at the time.
Surrogate mothers don’t have any parental rights or obligations
Provided the agreement is confirmed by the High Court, a child or children born from a surrogate mother will, by law, be regarded as the lawful child or children of the commissioning parents, and the surrogate mother and her partner will have no parental rights or obligations towards the child.
A very important fact to note, however, is that if a surrogacy contract has not been approved by the High Court, then the baby will legally belong to the surrogate mother.