Are you familiar with the legal requirements for surrogacy?
Arisha Rajaram
Surrogacy in South Africa
Surrogacy is a process where artificial fertilization occurs in a surrogate mother to assist parents (commissioning parents) in bearing a child. The surrogate mother has the duty to care for the child during pregnancy and undertakes to hand over the child to the commissioning parents after the birth of the child. The child is deemed to be the legitimate child of the commissioning parents.
Procedure of surrogacy in South Africa
The process of surrogacy would only be effective once a surrogate motherhood agreement has been entered into and signed by all parties concerned. Section 19 of the Children’s Act 38 of 2005 (Children’s Act) regulates the legalities surrounding surrogacy, and the Children’s Act further specifies the requirements relating to a surrogate motherhood agreement. Once the surrogate motherhood agreement has been signed, section 295 of the Children’s Act states that the surrogate motherhood agreement must be confirmed by a court.
The surrogate motherhood agreement
In order for a surrogate motherhood agreement to be valid and binding, section 292 of the Children’s Act states that the surrogate motherhood agreement must:
- be in writing;
- be signed by all parties concerned;
- be entered into in the Republic of South Africa;
- ensure that at least one of the commissioning parents is domiciled within the Republic of South Africa;
- confirm that the surrogate mother and her husband or partner, if any, must be domiciled in the Republic of South Africa, however, this may be changed by a court; and
- be confirmed by the High Court in whose area of jurisdiction the commissioning parent or parents are domiciled or habitually resident.
According to section 296 of the Children’s Act, the surrogate motherhood agreement would impact the status of the child and would ensure that the child is deemed to be the child of the commissioning parents from date of birth.
A valid surrogate motherhood agreement would further be entered into to ensure that the surrogate mother hands over the child to the commissioning parents, on birth. It further confirms that the surrogate mother, her spouse, parents and/or partner:
- have no parental rights over the child, unless it has been provided for in the surrogate motherhood agreement;
- would not have any maintenance obligations relating to the child; and
- would have no rights of contact with the child, unless provided for in writing.
The agreement would further make provision for instances when the agreement may be terminated, in order to protect all parties involved.
Confirmation by a court order
As stated above, a surrogate motherhood agreement would need to be confirmed by an order of court, prior to the surrogacy arrangement being valid. A court would only confirm such surrogacy agreement when all relevant parties have provided their consent to the surrogate motherhood agreement. However, where consent is arbitrarily withheld, the court may still confirm the surrogate motherhood agreement.
It is also important to note that in terms of section 294 of the Children’s Act, a court can only confirm a surrogate motherhood agreement if the conception process of the child uses the:
- gametes of both the commissioning parents, where possible; or
- the gamete of at least one of the commissioning parents where it is not biologically or medically possible to use the gametes of both commissioning parents.
The court will always take into account the best interests of the child to be born prior to confirming the agreement, and this would include aspects such us the competency of the commissioning parents to enter into the agreement and the contact care and upbringing of the child, and well as certain requirements relating to the surrogate mother.
Surrogacy and compensation
South African law prohibits compensation or a reward, either in cash or in kind, for providing the assistance of surrogacy to commissioning parents. However, section 301 of the Children’s Act, does allow for the reimbursement of certain expenses directly relating to:
- the artificial fertilization process of the surrogate mother;
- the birth of the child, such as hospital expenses;
- confirming the surrogate motherhood agreement at court;
- loss of earnings which may be suffered by a surrogate mother, due to the pregnancy; and
- insurance during the pregnancy.
Non-compliance with the above is a criminal offence and may result in the person/s who contravened this provision being liable to a fine and/or imprisonment.
For further information on assistance or advice with the legalities of surrogacy and/or a surrogate motherhood agreement, contact Rajaram Mvulane Attorneys at info@rajarammvulane.co.za or on 071 872 8797.
