Surrogacy, when one woman carries a child in her womb for another woman, is surrounded by much controversy. But at the end of the day it is a legalised process with some countries’ laws differing significantly from others.
Although shrouded in debate and frequently considered something of a new thing, surrogacy has surprisingly been around since biblical days.
In South Africa surrogacy is not something that can be negotiated privately as it demands that certain legal contracts are drawn up in an attempt to protect all parties concerned, including the unborn child.
Bears a financial cost to commissioning parents
Bear in mind that this practice also comes at a financial cost, including fertility clinic costs, legal work, life insurance and medical insurance costs, court order costs and reimbursement costs for the surrogate mother. These are only for actual loss of income and costs associated with the surrogacy. Surrogate mothers may not be paid to be a surrogate.
Because surrogacy is a delicate matter, the South African law necessitates the receiving parents and the surrogate mom to be psychologically assessed, the cost of which also falls into the hands of the commissioning parents.
Key points of surrogacy
The South African Children’s Act, particularly chapter 19, covers the legal aspects pertaining to surrogacy in this country. Although extremely comprehensive, there are some key details to consider:
- The surrogate mom must have a living child
- The surrogate mom must live in South Africa (must have domicilium)
- One or both commissioning parents must also reside in South Africa (must have domicilium)
- A surrogacy contract needs to be sanctioned as part of the surrogacy agreement
- The surrogate mom is not allowed to profit from the surrogacy arrangement, i.e. she cannot -sell her baby
- The commissioning parents need to have a valid medical reason for having to choose the surrogacy route
- The gametes of at least one of the commissioning parents must be used in the conception of the baby
- A court order must be obtained surrendering parental rights and responsibilities from the surrogate mom before embryos are transferred into the surrogate mom
Effects of a legal surrogacy
According to the South African Children’s Act regarding surrogacy, the effect of a valid surrogate motherhood agreement is that:
- Any child born to a surrogate mom in accordance with the agreement is for all purposes the child of the commissioning parent or parents from the moment the child is born
- The surrogate mom is obliged to hand the child over to the commissioning parent or parents as soon as is reasonably possible after the birth
- The surrogate mom or her husband, partner or relatives have no rights of parenthood or care of the child
- The surrogate mother or her husband, partner or relatives have no right to any contact with the child unless provided for in the agreement between the two parties
- Subject to sections 292 and 293, the surrogate motherhood agreement may not be terminated after the artificial fertilisation of the surrogate mother has taken place
- The child will have no claim for maintenance or of succession against the surrogate mother, her husband or partner or any of their relatives
- Any surrogate motherhood agreement that does not comply with the provisions of this Act is invalid and any child born as a result of any action taken in execution of such an arrangement is for all purposes deemed to be the child of the woman that gave birth to that child.
Surrogacy is a legally binding and intricate process. Any commissioning parents or surrogate mom needs to consider all the factors extensively. You can approach a lawyer for this information or preferably go straight to an egg donation agency, who deals with such cases every day so they are familiar with the law and what is needed from both commissioning parents and the surrogate mom.