We have put together a number of questions that we get asked by surrogates. If there is something that you would like to know, which is not covered here, feel free to send us an email email@example.com 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 Parent(s) are confirmed by the Court.
It is a requirement of South African surrogacy law, that at least one of the Commissioning Parent(s) 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. What or who is a surrogate mother?
A surrogate mother means 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 are or 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 becomes the legitimate child of the commissioning parent(s).
4. What are the requirements for being a surrogate?
The requirements for you to be a surrogate are simple:
- You need to be medically fit and healthy. You will get screened by the Commissioning Parent(s)fertility specialist and clinic. However, prior to this you will be required to go for a general health check at your local pharmacy or doctor.
- You need to have at least 1 (one) living child of your own. You will be required to provide their birth certificate.
- You need to be suitable (psychologically) to be a surrogate. You will be screened by a clinical psychologist who specialises in surrogacy.
5. How do I become a surrogate?
You need to fill in the Fertility Law Surrogate Mother Questionnaire and email it back to us. The details of becoming a Fertility Law Surrogate Mother are specified above. Once you have sent us your questionnaire and supporting documentation we will arrange and schedule your first consultation with a someone from Fertility Law.
6. What is involved in “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, in 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. Is surrogacy for me?
Being a surrogate is an incredible gift to a family and the rewards can be lifelong. It might be something you’ve always thought about doing or are only now considering. Either way, it is emotionally and physically demanding. If you are considering being a surrogate, it is not a decision to be taken lightly or without considering the journey ahead. You will need to think about and consider the following:
- what support you will have throughout your pregnancy and after delivery;
- what practical and emotional help will you have from your partner, family and friends;
- the medical, legal, emotional and practical implications of carrying a child for someone else;
- what the effect of being a surrogate will be (if any) on your existing children, as well as your partner and family.
8. Is there any counselling?
Fertility Law will provide Surrogacy Preparation Counselling prior to you being matched with a commissioning parent(s). Surrogacy Preparation Counselling will be with a psychologist or social worker, who is experienced in the field of surrogacy and who will assist you in understanding and dealing with the emotional implications of being a surrogate. The purpose of this is to ensure that your surrogacy journey is as mutually happy and fulfilling as possible.
9. If I am breastfeeding, can I be a surrogate?
Breastfeeding can delay a woman’s return to fertility by causing a lack of ovulation and periods and can prevent your uterus lining from forming properly and therefore prevent an embryo from implanting correctly. Therefore, to become a Surrogate Mother, you would have to stop breastfeeding and resume your regular menstrual cycle for a more successful IVF process. It is important that you give your existing family and your breastfeeding child the attention that they need at this early stage of their life. We would not want to rush this part of your own journey and interfere in that special time with your children. Although you would have to have stopped breastfeeding before becoming a Surrogate Mother, and this may delay your dream of assisting a couple in becoming parents, it does not preclude you from ever becoming a Surrogate Mother. There is a large enough demand for surrogates in South Africa. We at Fertility/AMA Law can guarantee that you will have an opportunity to be a Surrogate Mother at a later stage.
10. How much will I get paid for being a surrogate?
Surrogacy in South Africa is only allowed on an altruistic basis. This means that you are entering into this journey because you want to assist a couple with having a child of their own. In no way should your motivation be for financial gain. Commercial surrogacy is illegal in South Africa. The only things that are paid to you as a Surrogate Mother are, any loss of earnings that you may incur during the journey, together with all reasonable pregnancy related expenses. Your loss of earnings and reasonable expenses will be stipulated and regulated in the Surrogate Motherhood Agreement that you enter into with the Commissioning Parent(s) and which the Court has sight of. The Commissioning Parent(s) will also cover all of your medical expenses that are incurred as a result of the artificial fertilisation procedures, pregnancy and birth, together with life and disability insurance cover. We reiterate that no other payments are allowed, regardless of whether they are paid in cash or in kind. Please bear in mind that the law is very clear on this and there are strict criminal sanctions should you choose to ignore or contravene the law in this regard.
If you are unemployed, or are a stay at home mother, then you will only be able to be a Surrogate Mother if you have a spouse or partner that financially supports you. He or she will have to be a party to the Surrogate Motherhood Agreement and subsequent Court process and we will be required to provide the Court with confirmation of this.
11. Do I need to be married to be a surrogate?
No, you do not need to be married in order to be a Surrogate Mother. However, it is important to ensure that you have a support network that will assist you during your pregnancy and after the birth.
12. How do I choose the Commissioning Parent(s) I work with?
Choosing your Commissioning Parent(s) means considering who they are and what sort of relationship you want to have. Surrogacy is an 18 to 24-month journey and so helping the right person or people, for you, is very important. There are lots of people who would welcome your help with completing their family. The most important element is that you are as comfortable with them, as they are with you, so that you can form a trust based, honest relationship. It is also important to be open and honest from the very first day. To discuss what your expectations are and what you want out of your surrogacy journey. Fertility Law will assist you with that matching. We will introduce you to a couple who are aligned with you on the bigger issues (like termination and expenses) as well as softer things but no less important (like lifestyle and personality) and the same goes for the Commissioning Parent(s).
13. How long does matching take?
The surrogacy process itself varies in length of time, with screening and preparatory discussions needed before you are ready to be matched. The demand for Surrogate Mothers in South Africa is very high, so you should not expect to wait too long. However, it may take some time to complete your initial pre-screening and to correctly match you with the right couple.
14. How long does the entire surrogacy journey take?
In our experience surrogacy is an 18 – 24-month journey. It can of course take less than 18 – 24 months. However, it is best to prepare for an 18 – 24-month journey.
15. Who is the legal parent of a surrogate child?
The law in South Africa is clear on the issue of parental responsibilities and rights. The Children’s Act specifically regulates all things 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 that we obtain prior to the artificial fertilisation beginning. You as the Surrogate Mother will not obtain any form of parental responsibilities and rights, neither will your family.
16. Are Surrogate Mother’s entitled to maternity leave?
The law in South Africa does not differentiate between a mother carrying her own genetic child, and that of a Surrogate Mother carrying another couple’s child. This means that you are entitled to maternity leave in the same way as if you were having your own child. You must however carefully read your employment contract, specifically with regards to paid maternity leave, as some employers refuse to pay Surrogate Mothers during their maternity leave.
17. 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 you as a Surrogate Mother, but surrogacy success rates are not currently collected separately. There are far too many variables including the response of Surrogate Mothers, as well as embryos, sperm and eggs’ quality. It is always sensible to anticipate two to three attempts to get pregnant.
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