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Becoming a Fertility Law Surrogate

Surrogacy in South Africa is regulated by Chapter 19 of the Children’s Act, 38 of 2005 (the “Children’s Act”). South Africa is at the forefront of surrogacy in the world with specific law relating to and regulating surrogate motherhood agreements, and subsequent surrogacy journeys.

Prior to Chapter 19 coming into law on 1 April 2010, the common practice was to enter into a written Surrogate Motherhood Agreement, and then on the birth of the child or children, to approach the relevant Children’s Court for a known adoption. This was due to the fact that the birth mother (the surrogate) was automatically assumed to be the biological mother of the child and automatically obtained full parental responsibilities and rights. If she was married at the time, then her husband would also obtain full parental responsibilities and rights by operation of the law. Commissioning parents were required to adopt their own biological child, which in itself is non-sensical and specifically what the law relating to surrogacy tries to alleviate.

A known adoption is no longer required because parties to a Surrogate Motherhood Agreement are required to approach the High Court in whose jurisdiction they are domiciled, prior to any treatment being undertaken by the fertility clinic, for an order in terms of which they ask the court to confirm the written Surrogate Motherhood Agreement entered into between the commissioning parents and the surrogate parents. This serves to confirm that the parental responsibilities and rights are those of the commissioning parents and not those of the surrogate mother and if she is married, her husband; and to specifically authorise the doctors performing the artificial fertilisation, to perform artificial fertilisation.

Commercial surrogacy in South Africa is illegal and is only allowed on an altruistic basis. Any payments, whether in cash or in kind, that are not regulated by the Surrogate Motherhood Agreement in terms of Chapter 19, are considered illegal and carry criminal sanctions. The only payments that are allowed relate to the payment of professional services (medical, legal and psychological), reasonable expenses, loss of earnings, medical aid and life insurance, all of which are strictly regulated in the Surrogate Motherhood Agreement. It must be noted that the payment of an agency fee to find a surrogate is also outlawed by Chapter 19.

At Fertility Law we appreciate how difficult it is to find surrogates. It is for this reason that we assist all of our clients, free of charge, with finding and matching with a surrogate mother that has been pre-screened. Given our unique expertise we are often approached by ladies interested in assisting couples by being a surrogate.

If you are interested in becoming a surrogate, please click on the button below.

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