Is it legal to use a surrogate mother’s services?

The issue of surrogacy is a sensitive one, as it is usually considered by people who desperately want children but for various reasons can’t have children of their own. Here is one such an enquiry:

“I am medically unable to give birth to a child. For this reason my husband and I have talked about the option of surrogacy. We have discussed it with my sister and she has said she is willing to consider it. We have not yet spoken about costs or payment for her to do this, because we aren’t sure whether surrogacy is allowed in South Africa. Is surrogacy an option we can consider?”
Vaalweekblad put this question to the De Beer & Claasen Group of Attorneys in Sasolburg, and they responded as follows:

Surrogacy is allowed in South Africa and is regulated by the Children’s Act. The Children’s Act contains strict prerequisites which parents must satisfy before entering into a surrogacy agreement. These prerequisites include (but are not limited to only these):

• The commissioning parent or parents are not able to give birth to a child and the condition is permanent and irreversible;

• They must be competent to enter into a surrogate agreement;

• They must be suitable parents to take care of a child; and

• They must accept the legal consequences of the agreement between them and the surrogate mother.

It is very important to note that no person may in connection with a surrogate motherhood agreement give or promise to give to any person, or receive from any person, a reward or compensation in cash or in kind. The only compensation or payment allowed is compensation for expenses that relate directly to the artificial fertilisation and pregnancy of the surrogate mother, the birth of the child, confirmation of the surrogate motherhood agreement, loss of earnings suffered by the surrogate mother, or insurance to cover the surrogate mother for anything that may lead to death or disability brought about by the pregnancy.

The surrogate mother also has to tick certain boxes. She must, for example, have a documented history of at least one pregnancy and viable delivery, have one living child of her own, and it must be apparent that she is not using the surrogacy as a source of income.

No surrogacy in South Africa, even if the above requirements are met, will be valid without a valid surrogate motherhood agreement which is in writing, signed by all the parties thereto, and entered into in South Africa and confirmed by the High Court within whose area of jurisdiction the particular parents are domiciled or habitually resident. The surrogate motherhood agreement will only be confirmed once all of the above-mentioned restrictions and requirements as required by the Children’s Act have been met and the agreement includes adequate provisions for the contact, care, upbringing, general welfare and best interest of the child.

Before you consider surrogacy as an option, it is recommended that you consult a family law specialist to discuss the requirements for a valid surrogate motherhood agreement.

Illustration graphics – Acknowledgement: MedicalTourismCo.com

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