“My wife and I cannot have children of our own and as such we are considering surrogacy. How is this regulated and what are the pros and cons”
Surrogacy is when a women volunteers to gestate a pregnancy for another person or couple, whereafter the other person or couple will become the child’s parents after birth.
In order to have this process done legally, the process must be regulated by a written agreement, which agreement must be made an order of the High Court of South Africa.
Section 292 (1) of the Children’s Act no 38 of 2005, set forth certain requirement which must be present in such an agreement which are;
- the agreement is in writing and is signed by all the parties thereto;
- the agreement is entered into in the Republic;
- at least one of the commissioning parents, or where the commissioning parent is a single person, that person, is at the time of entering into the agreement domiciled in the Republic;
- the surrogate mother and her husband or partner, if any, are at the time of entering into the agreement domiciled in the Republic; and
- the agreement is confirmed by the High Court within whose area of jurisdiction the commissioning parent or parents are domiciled or habitually resident.
What is important to note that in terms of Section 293 of the act, it is imperative that the where a commissioning parent is married or involved in a permanent relationship, the court may not confirm the agreement unless the husband, wife or partner of the commissioning parent has given his or her written consent to the agreement and has become a party to the agreement.
The same applies to the surrogate mother, where the surrogate mother is married or involved in a permanent relationship. If such consent is unreasonably withheld, the court may confirm the agreement.
A court may further not confirm a surrogate motherhood agreement unless-
(a) the commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible;
(b) If the surrogate mother is using surrogacy as a source of income;
(c) has entered into the agreement for altruistic reasons and not for commercial purposes;
(d) has a documented history of at least one pregnancy and viable delivery;
(e) has a living child of her own;
(f) the agreement includes adequate provisions for the contact, care, upbringing and general welfare of the child that is to be born in a stable home environment, including the child's position in the event of the death of the commissioning parents or one of them, or their divorce or separation before the birth of the child.
(g) if any one of the parties to the agreement does not hold the necessary mental capacity to understand the rights and obligations set out in the agreement.
All of the above, must therefore specifically be addressed not only in the agreement between the parents and the surrogate, but must be submitted with the court application when the Court is called upon to make an order.
The Cons to surrogacy;
Amongst the various risks involved with such a process, the process is expensive as you and your wife will need to undergo social, medical and psychological assessment as well as obtain a police clearance.
Moreover so, the costs of the court application, surrogacy agreement, attorney fees, medical procedure and any expense relating to the surrogate mother inclusive of traveling costs, accommodation costs and medical costs might be more than what you budget for.
The Pros to surrogacy;
For parents who are unable to conceive a child, the pros to surrogacy are self-explanatory, the mere fact that you will be able to enjoy the birth of your child, the first school year and all those special occasions might be overwhelming when balancing the pros and cons.
If you consider surrogacy, it is advisable that you approach a legal firm who specialise with surrogacy matters and this is a specialised field of our law.
Reference List: