Surrogacy Agreements

In terms of the South African law, surrogacy is a relatively recent and still evolving concept. In South Africa, surrogacy is regulated by the Children’s Act 38 of 2005 (hereinafter referred to as “the Children’s Act”). In terms of the Children’s Act, a surrogate mother can be defined as a woman whom undergoes pregnancy and so doing carries a baby on behalf of delegating (biological) parents.

Ever so often the question of how surrogacy works and what exactly it entails gets raised. It is of the essence to comprehend how surrogacy is implemented. For the purposes hereof, the natal aspects of surrogacy can simply be explained as set out below:

  • The parties involved are the surrogate mother and the parent and/or parents that instruct the surrogate to carry the child.
  • The instructing parents’ (or that of a donor in the instance where the parents are barren or there is only one parent present) biological cells are harvested to enable procreation.
  • The abovementioned cells are merged, so as to be fertilised in a laboratory. Once fertilised, it is referred to as an “embryo”.
  • The embryo is then implanted into the surrogate mother’s uterus. If the implantation was successful, the embryo will develop into a foetus.
  • The surrogate mother will then carry the foetus until birth.
  • Once the child is born, the child will be handed over to the natural parent/s.

It is noteworthy that the surrogate is not the biological mother of the child, she rather only acts as a vessel through whom the child’s livelihood is carried to full term. It is enshrined in the Children’s Act that the child born ought to be regarded as the child of the biological parents whom instructed the surrogate. The process of surrogacy has been codified by the Children’s Act and thus regulates the prerequisites that has to be complied with.

Surrogacy Requirements in South Africa

  • The instructing (commissioning) parent(s) should not be able to naturally conceive a child.
  • The commissioning parent(s) must be able and competent to sign a Surrogate Motherhood Agreement (hereinafter referred to as “the Agreement”). Section 1 of the Children’s Act defines the Agreement as follows:

Means an agreement between a surrogate mother and a commissioning parent(s) in which it is agreed that the surrogate mother will be artificially fertilized for the purpose of bearing a child on behalf of the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent(s) upon birth, or within a reasonable time thereafter, with the intention that the child concerned is the legitimate child of the commissioning parent(s).

  • The surrogate mother must intend to reside within South Africa as well as have permanent residency. Furthermore, at least one of the commissioning parents must reside in South Africa as well as intend to have permanent residency in South Africa.
  • The Agreement must be: in writing, entered into within the borders of the Republic and duly signed by all the relevant parties.
  • The Agreement must be approved and indorsed by a High Court of South Africa. Jurisdiction of the relevant High Court will depend on the residential area of the parties concerned. Validation of the agreement is required prior to implantation of the embryo (into the surrogate’s womb).
  • Where applicable, spouses of the surrogate and/or delegating parent(s) are also essential.
  • The following documents must be submitted to the High Court for approval:
    • The original signed Agreement;
    • A social worker report, as well as a psychological report of both the commissioning parent(s) and the surrogate;
    • A medical report by the fertility specialist for both the commissioning parent(s) and the surrogate;
    • A certified affidavit as signed by the surrogate (and her partner if applicable).

The Surrogate Mother

It must be borne in mind that a surrogate mother is not permitted to receive any incentive or compensation, as that can be seen as remuneration. All the medical expenses relating directly to the surrogacy must be settled by the commissioning parent(s). The surrogate mother is able (in certain circumstances) to claim for the reasonable and appropriate loss of earnings as a direct result of the surrogacy. The costs pertaining to the surrogacy agreement, including the legal costs as well as any miscellaneous costs (such as a psychological assessment) will be the liability of the commissioning parent(s).

After the entire process has been concluded, it is significant to remember that neither the surrogate mother, nor any of her relatives will have any rights pertaining to the child (unless specifically provided for in the Agreement).

The name(s) of the commissioning parent(s) will reflect on the birth certificate, therefore no adoption is necessary. The commissioning parent(s) will have parental rights over the child at all times.

Surrogacy and Child Maintenance

Both parents have an inherent obligation to maintain their child. Our law also makes provision for the event where neither one of the parents are in the position to maintain their child. The duty to maintain their child, if not adhered to by one of the parents, will be passed on to the grandparents of the child. When the child does not have grandparents, who can maintain the child, the court can also make an order against one of the siblings of the child to contribute towards the maintenance of the child. When an order, including an order for maintenance, must be made regarding any aspect relating to a child, the court will always consider what is in the child’s best interest.

What process should I follow if I want to enter a surrogacy agreement?

If you’re contemplating a surrogacy agreement, our competent team of attorneys will be dedicated and capable of assisting you. Once you have made contact with us, we’l schedule a consultation with you so as to discuss the process and the applicable fees. We are mindful of the fact that the process can seem bewildering and that individuals are not always aware of the rights they have to their disposal.

Therefore, it’s our goal to provide you with the best possible professional assistance in order to make this process more comfortable and easy to understand. For assistance kindly email us at info@barnardinc.co.za or phone us on 0861 088 088.

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