The Law regarding Surrogacy

By 23rd Feb 2021Family Law
The Law regarding Surrogacy

With the world becoming increasingly modernised, it has become more acceptable to consider other unconventional ways of having babies, and surrogacy is one of them. The fairy-tale of boy meets girl, they have children and live happily ever after is clearly not a “one size fits all” scenario.

Surrogacy is an arrangement by which a woman gives birth to a child on behalf of another person and then hands the child over to that person to raise as their own.

In South Africa, surrogacy is recognised and is legal, however, unlike in some other countries, it is only legal where one is not able to give birth due to a certain condition which is permanent and irreversible. It cannot be purely out of choice.

There are also strict laws applied to surrogacy. It is regulated in terms of Chapter 19 of the Children’s Act 38 of 2005 (the Act) and the following rules apply both to the people requiring a surrogate (known as the commissioning parents) and the surrogate mother:

  • The agreement between the commissioning parents and the surrogate mother must be in writing and must be taken to the High Court and be made an order of the court. This must all be done prior to the surrogate being inseminated;
  • If either the surrogate mother or the commissioning parent are married or in a permanent partnership, their spouses or partners must also consent to the surrogacy;
  • At least one of the commissioning parents must be the biological parent of the child to be born from the surrogate mother;
  • The surrogate mother cannot receive any payment from the commissioning parents whether in cash or in kind. The surrogate mother can only be reimbursed for expenses incurred such as medical expenses or loss of income while she is away from work due to the pregnancy;

If all of the above is complied with, a child or children born from a surrogate mother are considered as the lawful children of the commissioning parents from the moment they are born. Neither the surrogate mother nor her spouse or partner, or any of her relatives have any rights or obligations towards the child.

 

If you are want to know more about surrogacy or need assistance with concluding a surrogacy agreement feel free to contact us for assistance.

 

Rose Mkandhla
rose@bbplaw.attorney
Associate

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