Surrogacy

What you need to know if you are considering parenthood via surrogacy

You probably know someone who has had a baby through fertility treatment, either via artificial insemination (AI) or in vitro fertilisation (IVF, or a “test-tube baby”). Fertility issues are far from rare: the WHO estimates that globally one in six adults experiences infertility. Therefore, we all probably know someone who has had fertility treatment, though we might not be aware of it. It is naturally private and most couples only discuss it with their nearest and dearest. But did you know that prior to 1978 the only option for infertile couples was adoption? The first baby born by IVF was Louise Brown in the UK in July, 1978. But surrogacy, while becoming more widespread, is less common than IVF or AI involving the biological mother. And it is more controversial. If you are considering surrogacy, what do you need to know?

Legislation

Surrogacy in South Africa is primarily governed by the Children’s Act 38 of 2005. The Act provides a comprehensive legal framework, outlining the rights of the parties involved, as well as the legal process of surrogacy. It contains several sections that pertain directly to surrogacy arrangements:

• Sections 293 and 294 outline the conditions under which a surrogate motherhood agreement may be concluded. The agreement must be the only reasonable way the commissioning parents can have a child who is genetically theirs.
• Section 295 requires the agreement to be in writing and signed by all parties. It defines the essential elements of the agreement.
• Section 297 deals with the need for the court to confirm the surrogacy agreement. The court must be satisfied that all conditions in the Act have been met and the agreement is in the best interests of the child.

Commercial vs. altruistic surrogacy

You may have seen dramas from the US involving commercial surrogacy – the payment of a fee for carrying the baby. This is illegal in South Africa. Only altruistic surrogacy is permitted. In other words, a surrogate mother cannot be paid for her service beyond reasonable compensation for expenses directly related to the surrogacy. The Act describes certain conditions that must be satisfied for a surrogacy to be legally permissible:

1. The commissioning parents and the surrogate must be domiciled in South Africa.
2. The surrogate must have had at least one successful pregnancy.
3. The surrogate must have the written consent of her partner if she is in a relationship.
4. The reason for surrogacy must be valid. This could be infertility, risk of transmission of genetic disorders, or any other condition that prevents the commissioning parents from bearing a child.
5. At least one of the commissioning parents must be genetically related to the child. (Donor egg or sperm may be used if the mother is unable to use her eggs or is over the age of 39 or if the father is infertile.)

Parents’ rights – gestational vs. traditional surrogacy

After the child’s birth, the commissioning parents are immediately recognised as the legal parents of the child in the case of gestational surrogacy (where the commissioning parents are the biological parents). In traditional surrogacy, the surrogate’s egg is fertilised by the commissioning father’s sperm, making the surrogate the biological mother of the child. The commissioning parents are not granted full legal rights to the child in traditional surrogacies under South African law. A surrogate mother in a  traditional surrogacy has the option to terminate the surrogacy arrangement and obtain parental responsibilities and rights through the court. For this reason, although traditional surrogacy is not illegal, most fertility clinics strongly discourage it or simply do not offer the option. The surrogate mother in gestational surrogacy has no rights or obligations to the child, and the child’s birth certificate will reflect the names of the commissioning parents. 

Legal process

The legal process starts with a comprehensive surrogacy agreement, which must be confirmed by the High Court before conception can take place. The court assesses medical reports and psychological evaluations of the surrogate, among other things. The court must be satisfied that the agreement meets the requirements of the Act and is in the best interest of the child. The following steps must be completed for court approval:

1. Prepare the necessary documents. This includes the written surrogacy agreement which should be drafted by a lawyer knowledgeable in surrogacy law. Additionally, a report from the offices of the Family Advocate, medical certificates from fertility doctors, psychological evaluation reports of the surrogate mother, and a statement of the financial implications of the agreement are required. Once the documents are submitted, the High Court reviews the documents and assesses whether all the conditions set out in the Act have been met.
2. The commissioning parents and the surrogate may be required to appear in court. During the appearance, the judge asks questions to determine if the agreement is in the best interests of the child to be born. If the court is satisfied, it will confirm the agreement. 
3. Once the court has confirmed the agreement, the process of artificial fertilisation can begin. In terms of the Act, any surrogate pregnancy that begins before the court confirms the surrogacy agreement is deemed illegal. 

The surrogacy agreement

The surrogacy agreement is a legal document that details the obligations and rights of all parties involved, including the surrogate mother, her partner (if any), and the parents. Careful and concise drafting is essential, and the document must be thorough in its scope. It should: 

• Clearly identify all the parties involved in the surrogacy arrangement.
• Include written consent to the surrogacy by the surrogate mother and her partner (if applicable).
• Describe the rights and responsibilities of each party, ensuring the surrogate mother agrees to seek appropriate medical care during the pregnancy and the intended parents agree to cover all relevant expenses.
• Contain a detailed account of all anticipated expenses related to the pregnancy. The surrogate cannot be paid for her services but she can be compensated for medical costs, travel expenses, maternity clothing and any other related costs.
• Unequivocally declare that the intended parents will be the legal parents of the child, with sole custody and decision-making rights.
• Include a clause, if desired, requiring the surrogate (and potentially her partner) to maintain the confidentiality of all information related to the surrogacy.
• Outline the circumstances under which the agreement may be terminated and the legal implications of such termination.
• Stipulate the process to be followed in case of a dispute.

Do you need an attorney?

The court process can be time-consuming and requires patience from all parties. A legal professional who has experience in surrogacy law will ensure all legal requirements are met and save you potential heartbreak.

SD Law is a firm of attorneys based in Cape Town, with offices in Johannesburg and Durban, who are experienced in family law. If you are considering surrogacy, or you just want to discuss your options, call family lawyer Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion. Together we will determine the best way forward for you.

Further reading:

• Children’s Amendment Bill

SD Law

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