Throughout human history people who have been unable to conceive a child themselves have often relied on other women to bear a child for them to raise. This practice is called surrogacy and was first allowed as a legal practice in Babylonian Law.
While surrogacy is widely accepted and practiced internationally, surrogacy did not formally form part of South African law and was largely unregulated prior to the promulgation of the Children’s Act.
As of 1 April 2010 surrogate motherhood is legally enforceable in South Africa and recently the High Courts in the United Kingdom have granted parental orders in favour of parties who have had children born in South Africa through surrogate motherhood agreements.
WHAT IS A SURROGATE MOTHERHOOD AGREEMENT?
The Children’s Act defines a surrogacy agreement as an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent.
The surrogacy agreement is intended to vest the commissioning parent(s) with parental rights and responsibilities in respect of the child to be born and also results in the surrogate mother losing any rights and responsibilities in respect of the child.
WHEN IS A SURROGATE MOTHERHOOD AGREEMENT VALID:
To be valid a surrogate motherhood agreement:
- The agreement must be in writing and entered into in the Republic of South Africa;
- At least 1 (one) of the commissioning parents, the surrogate mother and her partner/husband must be domiciled in the Republic of South Africa at the time the agreement is entered into; and
- Must be confirmed by the High Court of South Africa.
WHEN WILL THE HIGH COURT CONFIRM A SURROGATE MOTHERHOOD AGREEMENT:
The High Court may not confirm a surrogate motherhood agreement unless:
- At least 1 (one) of the commissioning parents are unable to give birth to a child and the condition is permanent and irreversible;
- The commissioning parent(s) have the legal capacity to enter into the agreement, are suitable persons to accept the parenthood of the child to be conceived, and fully understand and accept the legal consequences of the agreement;
- The surrogate mother has the legal capacity to enter into the agreement, is suitable to be a surrogate mother, has a history of at least 1 (one) pregnancy and birth of a living child of her own, has entered the agreement for altruistic reason and not for commercial purposes;
- The agreement must contain suitable provisions in respect of the contact, care, upbringing and general welfare of the child to be born;
- Having regard to the personal circumstances and family situations, It would be in the best interests of the child to be born for the agreement to be confirmed.
WHAT IS AN ALTRUISTIC REASON TO ENTER INTO THE AGREEMENT:
The Children’s Act prohibits surrogate mothers from entering into the agreement as a source of income and prohibits the agreement being concluded for any commercial purposes.
The surrogate mother must enter the agreement for unselfish reasons to help the commission parents and can receive no remuneration for doing so.
A surrogate mother however is entitled to receive compensation for any expenses she incurs, as well as any loss of income she suffers, as a result of the pregnancy and/or birth of the child.
Surrogate motherhood is a viable and legal option to becoming a parent in South Africa, provided the process is properly structured and implemented in terms of the Children’s Act.