SURROGACY AGREEMENTS

The English language lacks the words to mourn an absence. … But for an absence, for someone who was never there at all, we are wordless to capture that particular emptiness. For those who deeply want children and are denied them, those missing babies hover like silent ephemeral shadows over their lives. Who can describe the feel of a tiny hand that is never held? – Laura Bush

Surrogate motherhood agreements are regulated by Chapter 19 of the Children’s Act, Act 38 of 2005. The process of surrogacy consists of a surrogate motherhood agreement entered into by the surrogate mother and her partner, if any, and the intended parents, whereafter the agreement must be confirmed by the High Court. The courts require an honest and comprehensive agreement, affidavits and an application.

The purpose of a surrogate motherhood agreement is to protect the interests of the intended parents, the surrogate mother and her partner, if any, as well as the child as contemplated in the agreement.

Requirements for a valid agreement

• The agreement must be in writing and signed by all the parties;
• The agreement must be entered into in the Republic of South Africa;
• Surrogacy in South Africa is only available to people living in South Africa. At least one of the commissioning parents and the surrogate mother, must be domiciled in South Africa at the time of entering into the agreement;
• The agreement must be confirmed by the High Court.

Confirmation by the High Court

The surrogate motherhood agreement as entered into between the parties must be confirmed by the High Court. This is done by way of a court application.

In order to satisfy the Court, the following requirements must be met:

1. Requirements in respect of the intended/commissioning parents.

– The intended parents are not able to give birth to a child;

– The intended parents are competent to enter into the agreement;

– The intended parents are suitable persons to accept parenthood. A report by a clinical psychologist and social worker will be obtained as corroborating evidence in this regard.

2. Requirements to become a surrogate mother
   .
   In order to act as a surrogate mother, one must:.

– be competent to enter into the agreement;

– be a suitable person to act as a surrogate mother, physically as well as mentally. A report by a clinical psychologist, social worker as well as medical reports will be obtained as corroborating evidence hereto;

– have a history of at least one previous pregnancy;

– have at least one living child.

Genetic Origin of Child

The conception of the child is to be effected by use of the gametes of both of the intended parents. However, if there is a valid reason why it is not possible to use the gamete of one of the intended parents or where the intended parent is a single person, the gamete of only one of the intended parents will be used.

Artificial fertilisation of the surrogate mother

No artificial fertilisation of the surrogate mother may be done before the agreement is confirmed by the High Court.

Payments in respect of surrogacy

Surrogacy may not be used as a source of income. In South Africa surrogacy has to be done for altruistic reasons.

The surrogate mother may only receive compensation for “reasonable expenses”, such as: maternity clothing, medical expenses, maternity leave, insurance, supplements.

Surrogacy for homosexual parents or a single person

In terms of the requirements as set out in the Children’s Act, surrogacy is possible for homosexual parents, as they are unable to become pregnant and only one of the intended parents’ gametes may be used.

Surrogacy is therefore also possible for a single person, if that person is unable to become pregnant. In order to confirm the Surrogate Motherhood Agreement, a court must be satisfied that the intended parent has the necessary financial stability, physical and mental health and emotional support.

For any further information, please contact Zerita du Preez: zerita@nvsinc.co.za or 012-807-1989.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)