Written by Juanice Jooste
25 April 2024
Is Surrogacy Legal in South Africa?
In light of the birth rate decreasing annually, with a predicted decline of 50% for each country in 2100, more people are turning to different assistance methods when trying to conceive a child. According to a study published in the Human Reproduction Update journal in March 2024, fertility treatments in women aged 34 and older increased by 23.9% from 2008 until 2017 and will most probably continue increasing as the years go by.
An alternative method for prospective parents who are unable to conceive a child for medical reasons is surrogacy, which has been regulated in South Africa since 2007 by the Child Protection Act No. 38 of 2005, which was later put into force on 1 April 2010.
This article discusses the legislation that governs surrogacy in South Africa, the requirements for a valid surrogate agreement, and how a surrogate child’s birth will affect the parental relationship, rights, and responsibilities.
How is Surrogate Motherhood Regulated in South Africa?
Legislation regarding surrogate motherhood can be found and is regulated by Chapter 19 of the Children’s Act 38 of 2005, which sets out when the surrogate’s fertilisation may start, how fertilisation should be done, and what will happen if, for instance, the pregnancy is terminated.
Does My Spouse Need to Sign a Surrogate Motherhood Agreement?
When surrogate parents enter into and sign a surrogate motherhood agreement with a surrogate mother, and you are married, or in a permanent relationship, the court will not approve the agreement unless there is written proof that your spouse or partner has given written consent that such an agreement can be made. This requirement ensures that your spouse or partner is also a party to the surrogate agreement.
Does My Spouse Need to Sign a Surrogate Motherhood Agreement if I am the Surrogate Mother?
Section 293 (1), (2) and (3) of the Children’s Act determines that if the surrogate mother is married or in a permanent relationship, the court will not approve the surrogate motherhood agreement unless there is written proof that her spouse or partner of the surrogate mother has given written consent that such an agreement can be made. The only exception to this requirement is if the spouse or partner of the surrogate mother is not the genetic parent of the child and consent is unreasonably withheld, in which case the court may confirm the surrogate motherhood agreement.
What is the Process of Drafting a Surrogate Motherhood Agreement?
The first and most crucial step regarding surrogacy is to consult with a legal practitioner to better understand your rights and responsibilities and the surrogacy process. The next step is to have a surrogate and establish the surrogate motherhood agreement before applying to the High Court for approval.
What are the Requirements for a Valid Surrogate Motherhood Agreement?
The requirements of a valid surrogate motherhood agreement are set out in Section 292 (1) of the Children’s Act 38 of 2005 as follows:
- The agreement must be in writing and signed by all parties wishing to participate.
- The agreement must be executed in South Africa.
- At least one of the parents who signed and entered into the surrogate agreement must be domiciled in South Africa.
- The surrogate and her husband or partner, if any, must also be domiciled in South Africa when the agreement is signed and entered into.
- The High Court must approve the surrogate agreement within whose jurisdiction the parents or parents who signed and entered into the agreement are domiciled or habitually living.
It is interesting to note that Section (1)(d), which requires that the surrogate and her husband or partner reside in South Africa when the agreement is signed and entered into, may be waived as a requirement by the court if good cause is shown.
How Does Surrogate Birth Affect the Relationship, Rights and Responsibilities between a Surrogate Parent and Child?
The effect of a surrogate motherhood agreement is set out in Section 297 of the Children’s Act as follows:
- When the child is born to a surrogate mother in accordance with a surrogate motherhood agreement, the child will, from the moment of birth, be the rightful child of the parent or parents who entered into and signed the agreement.
- The surrogate must hand the child over to the parent or parents who entered into and signed the agreement as soon as possible after the birth.
- The surrogate and her husband or partner, or any of her relatives, have no right to care for the child and no rights regarding parenthood.
- The surrogate and her husband or partner, or any of her relatives, have no right to have contact with the child unless it was agreed upon in the surrogate agreement between the parties involved.
- Subject to Sections 292 and 293 of the Children’s Act, the validity of the surrogate motherhood agreement depends on all parties’ consent. The agreement may not be terminated after artificial fertilisation has taken place.
- The child will have no claim for maintenance or succession against the surrogate, her husband or partner, or any of her relatives.
What Happens if a Surrogate Becomes Pregnant Before a Valid Surrogate Motherhood Agreement Has Entered Into?
It is important to note that if a surrogate becomes pregnant before a surrogate motherhood agreement is entered into, the High Court might reject the application to make the proposed agreement an order of the court. This rejection is because if a surrogate is pregnant before a surrogate motherhood agreement has been approved, it can lead to criminal charges for all parties involved and will make the child the surrogate’s legal child.
What Happens if a Child is Born and the Surrogate Motherhood Agreement is Deemed Invalid?
It is of utmost importance to understand that if any surrogate motherhood agreement does not comply with the Children’s Act, it will be invalid. Section 297 (2) of the Children’s Act stipulates that if a child were to be born and the surrogate motherhood agreement did not comply with the provisions of this act, the child would be deemed the child of the woman who gave birth to that child.
Surrogate Motherhood Agreements are complex, and the legal process of getting a proper Surrogate Motherhood Agreement approved by the High Court depends significantly on its validity. Contact one of Burger Huyser Attorneys‘ Surrogate Motherhood Agreement Specialists to guide you through the intricate process of drafting a valid and enforceable Surrogate Motherhood Agreement.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE