Modern families – surrogacy in South Africa

Go to varsity, start a successful career, meet your soulmate, get married, have children. That’s the fairy tale. But for many couples, conceiving a baby naturally is a stressful and difficult process, and in some cases, completely impossible.

Fortunately, the age of the modern family has given us modern conception options. Adoption is probably the most obvious possibility available to potential parents, while surrogacy is becoming more and more popular. Many celebrities, whether because of fertility problems or other reasons, have brought children into the world through surrogacy, including Nicole Kidman, Elizabeth Banks, Tyra Banks, Jimmy Fallon, Lucy Liu, Sarah Jessica Parker, Elton John and Ricky Martin.

Nicole Kidman, just one of a number of celebrities who have brought children into the world through surrogacy.

You may be considering a surrogate for several different medical reasons, or you may be thinking about surrogacy if you’ve tried but couldn’t get pregnant with a variety of assisted-reproduction techniques, such as IVF. Surrogacy has also made parenthood an option for same-sex couples; or for people who might not be able to adopt a child, perhaps because of their age or marital status.

Still, surrogacy involves a few more twists and turns than usual on the road to fulfilling your dream of raising, loving and caring for a child of your own. So how does surrogacy work in South Africa?

Rights and obligations

Surrogacy in South Africa is regulated by chapter 19 of the Children’s Act 38 of 2005 – meaning that, in order for future parents (referred to as “the commissioning party / parties” in the Act) to make use of a “surrogate mother” as a means of expanding their family unit, they would need to comply with the provisions of the Act. If they fail to comply with the provisions of the Children’s Act, it can have serious consequences for all the parties concerned, especially regarding the rights and obligations (responsibilities) of the parties in respect of the child.

“An important aspect of statutory compliance with the Children’s Act is that all the parties will need to conclude a written agreement with each other before embarking on the process of surrogacy,” explains Shani van Niekerk, family law expert at Adams & Adams Attorneys. “This agreement must be confirmed by the High Court and be made an Order of Court prior to the surrogate being inseminated.”

What are some of the most important legal matters to remember when considering surrogacy?

1. A surrogate mother’s motivation to assist commissioning parents must be altruistic. She may as such not receive a financial benefit for being a surrogate, other than being reimbursed for her expenses, the ambit of which are regulated by the Children’s Act, ie medical expenses or loss of income due to her not working.

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2. At least one of the commissioning parents need to be the biological parent of the child to be born from a surrogate mother. That means that one of the commissioning parents would need to provide either an egg or sperm for purposes of the artificial fertilisation. It entails that where one of the commissioning parents is conception infertile (does not have viable eggs or sperm), then donor eggs or sperm may be used provided one of the commissioning parents utilises his/her egg or sperm with the donor’s material for the artificial fertilisation process.

3. The surrogate mother and commissioning parents must, at the time of concluding the agreement, be domiciled in South Africa. If a surrogate mother is married or in a relationship, her husband and / or partner should also agree to her becoming a surrogate. This requirement also applies to a single commissioning mother who is in a permanent relationship at the time.

4. Provided the agreement is confirmed by the High Court, a child / children born from a surrogate mother will, by law be regarded as the lawful child / children of the commissioning parents, and the surrogate mother and her partner will have no parental rights or obligations towards the child.

*Surrogacy is a sensitive and complex process, so it is vital that the surrogacy agreement be drafted by an experienced attorney. Remember, without having a legally acceptable contract approved by the High Court, the baby will legally belong to the birth mother, the surrogate mother.