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Commissioning Parents FAQ

We have put together a number of questions that we get from commissioning parents. If there is something that you would like to ask, and which is not covered here, feel free to send us an email info@fertilitylaw.co.za with your specific query, alternatively give us a call to discuss.

There are two main types of surrogacy that are recognised by South African law: gestational surrogacy and traditional surrogacy. In South Africa, gestational surrogacy is far more common than traditional surrogacy, due to the various risks and complications associated with a traditional surrogacy.

1.1. Traditional Surrogacy

Traditional surrogacy (also known as partial, genetic, natural or straight surrogacy) involves natural or artificial insemination of a surrogate. The sperm that will be used will be that of the commissioning father. The resulting child or children born are genetically related to both the commissioning father and the surrogate.

The risk associated with a traditional surrogacy is that, in terms of section 298(1) of the Children’s Act, a surrogate mother who is also a genetic parent of the child concerned, may at any time prior to the lapse of a period of sixty days after the birth of the child, terminate the surrogate motherhood agreement by filing written notice with the court. In terms of the Children’s Act, the court must terminate the confirmation of the surrogate motherhood agreement upon finding, after notice to the parties to the agreement and a hearing, that the surrogate mother has voluntarily terminated the agreement and that she understands the effects of the termination. The court may issue any other appropriate order, if it is in the best interest of the child. The result of this cancellation is that the surrogate mother automatically obtains parental responsibilities and rights, along with the commissioning father. The parties will then need to enter into a parental rights agreement to regulate contact, care and maintenance of the child or children born as a result thereof, and have the Court confirm this arrangement.

1.2. Gestational Surrogacy

Gestational surrogacy (also known as host or full surrogacy) takes place when an embryo created using in vitro fertilisation (IVF), is implanted in the surrogate mother. Gestational surrogacy may take on a number of forms, but in each form the resulting child is genetically unrelated to the surrogate:

  • the embryo is created using the intended father’s sperm and the intended mother’s eggs. The resulting child is genetically related to both intended parents.
  • the embryo is created using the intended father’s sperm and a donor egg where the donor is not the surrogate. The resulting child is genetically related to the intended father
  • the embryo is created using the intended mother’s egg and donor sperm. The resulting child is genetically related to the intended mother

The surrogate mother does not have the option to cancel the agreement and obtain parental responsibilities and rights in a gestational surrogacy arrangement. The parental rights of the commissioning parents are confirmed by the Court.

It is a requirement of South African surrogacy law, that at least one of the commissioning parents be genetically linked to the child. This was recently confirmed in 2015 by the Constitutional Court in the case of AB and Other v Minister of Social Development.

2. Who is a surrogate mother?

A surrogate mother is an adult woman who enters into a surrogate motherhood agreement with the commissioning parent(s). In terms of which she agrees to become pregnant, carry the pregnancy to due term, and give birth to a child or children, all of this for another person or persons, who will ultimately become the parent(s) of the child or children.

3. What is a Surrogate Motherhood Agreement?

A Surrogate Motherhood Agreement is an agreement between a surrogate mother and a commissioning parent(s) in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent(s) and in which the surrogate mother undertakes to hand over a child or children to the commissioning parent(s) upon its birth, or within a reasonable time thereafter, with the intention that the child concerned is the legitimate child of the commissioning parent(s).

4. Do I qualify to use a surrogate? What are the requirements?

In order for an intended commissioning parent(s) to qualify to use a surrogate, it is required that we show the Court that intended commissioning parent(s) are suitable persons to be parents. We also need to show the Court that the commissioning mother has a condition, which is permanent and irreversible, that prevent her from carrying a pregnancy to full term.

5. What is involved in the legal process?

A written surrogate motherhood agreement must be entered into between the parties and a High Court application, in terms of Chapter 19 of the Children’s Act, must be made to the Court in which you are domiciled (ordinarily resident).

6. What is “artificial fertilisation”?

Artificial fertilisation means the introduction, by means other than natural means, of a male gamete into the internal reproductive organs of a female person for the purpose of human reproduction, including:

  • the bringing together of a male and female gamete outside the human body with a view to placing the product of a union of such gametes in the womb of a female person; or
  • the placing of the product of a union of male and female gametes which have been brought together outside the human body, into the womb of a female person.

Artificial fertilisation therefore includes both the extraction of the oocytes (eggs) and the transfer of the sperm and fertilisation of the oocyte (egg) with the sperm, therefore it includes both ‘artificial insemination’ and ‘in vitro fertilisation’:

  • artificial insemination – the placing of male gametes (sperm) into the fallopian tubes or uterus of the recipient. The most common method is called ‘intrauterine insemination’ where sperm are placed into the uterus of the recipient using a thin flexible plastic tube or catheter;
  • in vitro fertilisation – is the process of spontaneous fertilisation of an ovum with a male sperm outside the body in an authorised institution and then the transfer of the fertilised blastocyst into the uterus of the recipient using a thin flexible plastic tube or catheter.
7. Who is the legal parent of a child born to a surrogate?

The law in South Africa is clear on the issue of parental responsibilities and rights. The Children’s Act specifically regulates all thigs that relate to parental responsibilities and rights. In terms of section 297 of the Children’s Act, any child born of a Surrogate Mother in accordance with the agreement is for all purposes the child of the commissioning parent(s) from the moment of the birth of the child concerned. This is confirmed by the High Court in a Court Order, which we obtain prior to artificial fertilisation. As such, the Surrogate Mother will not obtain any form of parental responsibilities and rights, neither will her family.

8. What are surrogacy success rates like?

Success rates for surrogacy do not exist, at least not in a reliable way. Some fertility clinics can cite data on the success rates they have with IVF, the medical process by which the embryo will be implanted in a Surrogate Mother, but surrogacy success rates are not currently collected separately. There are far too many variables including the response of Surrogate Mother, as well as embryos, sperm and egg quality, to conclusively provide data and statistics. It is always sensible to anticipate two to three attempts to get pregnant.

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