Surrogacy and the Legal Process

04 April 2024 ,  Maritza du Preez 1063

Surrogacy, a process where a woman carries and delivers a child for another person or couple, is a complex journey intertwining medical, emotional, and legal considerations. In South Africa, the legal framework surrounding surrogacy is carefully constructed to protect the rights of all parties involved: the commissioning parents, the surrogate, and most importantly, the child.

The Children’s Act 38 of 2005 (the Act) governs the process of surrogacy, which provides a framework for the process, the rights of all relevant parties, and the surrogacy agreement. The Children’s Act's primary focus is on the best interest of the child. In this case, it is regulating the best interest of the child to be born. 

Some of the fundamental requirements of the Act are as follows:
The surrogate motherhood agreement (the agreement) must be in writing and confirmed by the High Court.
The agreement must be entered into in South Africa. At least one of the commissioning parents must be domiciled in South Africa, and
both the surrogate mother and father or partner should be domiciled in South Africa.
Any party, whether the surrogate mother or the commissioning parent’s spouse or partner, if any, should consent to the agreement.
The agreement must be confirmed by the court.
No fertilisation of the surrogate mother may take place before the agreement is confirmed by the court.

The courts require certain reports and involvement from experts when they consider such an application. For a surrogacy agreement to be considered, the court must give an order that the family advocate investigate and provide a report of such investigation. The parties involved must undergo thorough medical and psychological assessments to ensure their suitability for the process. Section 295 of the Act requires that the surrogate must have previously given birth to a child, signifying her ability to carry a pregnancy to term. Additionally, the commissioning parents must be unable to give birth to a child and the condition must be permanent. 

Throughout the surrogacy process, the surrogate is entitled to compensation for expenses relating to the artificial fertilisation and pregnancy, the birth of the child, and the application for the agreement. The surrogate mother is further entitled to a claim for loss of earnings because of the agreement and insurance to cover anything that may lead to death or disability brought about by the pregnancy.

For the confirmation of the agreement, and for the court to be satisfied with the surrogacy, the court must be satisfied that:
Based on the available evidence, including all relevant reports, the best interests of the unborn child will be served.
There has been full compliance with the Act.
There is no payment in relation to the surrogacy other than prescribed in the Act.
That all parties and their spouses understand the consequences.  

One firm or one attorney can represent all parties, however, it is of utmost importance that all parties involved in the process are aware that they are entitled to their own legal representation.

In conclusion, the legal process of surrogacy and the Act prioritise the welfare and best interests of the child to be born, whilst respecting the rights and dignity of all parties involved. By adhering to the provisions of the Children’s Act and obtaining court approval, surrogacy offers a regulated and ethical pathway for individuals or couples struggling with infertility to realise their dreams of parenthood.

Reference List:
1. Chapter 19 of the Children’s Act 38 of 2005

Maritza du Preez is an attorney at Miller Bosman Le Roux Attorneys.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. 

Related Expertise: Child Rights
Tags: Family, Surrogacy