Surrogacy Q&A

with Andrew Martin – Fertility Law

Andrew Martin is the owner of Fertility Law which is a specialised boutique legal practice and consultancy, which specialises in the law relating to artificial fertilisation of persons. 

Together with his brother organisation AMA Law (Andrew Martin Associates), they specialise in the law relating to assisted reproductive treatment (ART) and artificial fertilisation of persons wishing to start or expand their family through surrogacy, egg/sperm donation or embryo donation and more recently with both embryo and gamete disposition.

We sat down with Andrew to ask him about the process of surrogacy and what is required should somebody be interested in becoming a surrogate:

What are the requirements to become a surrogate?
There are a number of formal requirements:

The surrogate mother and her husband/partner must be domiciled in South Africa. 

However, this is not a strict requirement, as the Court has the discretion to dispose of this requirement.

The surrogate mother must be:

    • Competent to enter into the surrogate motherhood agreement. This means that she must be physically able to carry a pregnancy and have the necessary skill and knowledge about the process.
    • A suitable person to act as a surrogate mother
    • Understand and accept the legal consequences of the agreement and the rights and obligations that go with the process.
    • Not be using the surrogacy as a source of income
    • Undergoing to surrogate process for altruistic reasons – simply done out of a desire to help, not because you feel obligated to out of duty, loyalty or religious reasons
    • Have a documented history of at least one pregnancy and viable delivery.
    • Have a living child of her own

What are the requirements to make use of a surrogate?

The Commissioning Parents must be unable to give birth due to a ‘condition’, which in the opinion of a medical expert, is due to a condition that is permanent and irreversible. In addition, at least one of the Commissioning Parents must be genetically related to the child to be born i.e. there needs to be a genetic link to at least one of the Commissioning Parents.

 Do I get paid as a surrogate?

As a surrogate, you do not get paid an income. As mentioned, surrogacy is done for altruistic reasons. Chapter 19 of the Children’s Act makes provision specific compensation:

  •  Reasonable Expenses: compensation for expenses that relate directly to the artificial fertilisation and pregnancy of the surrogate mother, the birth of the child and the confirmation of the surrogate motherhood agreement;
  • Loss of Earning – loss of earnings suffered by the surrogate mother as a result of the surrogate motherhood agreement;
  • Medical and other insurance – insurance to cover the surrogate mother for anything that may lead to death or disability brought about by the pregnancy.

Any other payment, whether it is in cash or in-kind is considered illegal and carries with it very serious criminal sanctions (20years in prison). It must be noted that any promise or agreement for the payment of any compensation to Surrogate Mother or any person is illegal and unenforceable.

Do we, as the commissioning parents, need to pay the surrogate?

Yes and no.

You are obligated to pay your surrogate directly for:

  • Reasonable Expenses that relate directly to the artificial fertilisation and pregnancy of the surrogate mother, the birth of the child and the confirmation of the surrogate motherhood agreement; and
  • Loss of earnings suffered by the surrogate mother as a result of the surrogate motherhood agreement
  • You will also be obligated to cover all medical expenses relating to the artificial fertilisation and pregnancy of the surrogate mother and the birth of the child. You will in all likelihood pay this directly to the medical aid provider and medical professional
  • You will also be obligated to take out a life and disability insurance policy. It is advised that you pay the premiums directly to the provider
  • You will also incur legal costs for the drafting of the surrogate motherhood agreement and necessary High Court application

How long does the process take?

It really depends on a number of factors. However, the legal process, together with the screening should not take more than a month or two. The main delay in the process is finding a suitable surrogate. This can often take between 1 week to 1 year.

 What are all the costs involved?

Costs will vary depending on a number of factors – what clinic you use, how many rounds of IVF that you require, what treatment you undergo (use of a gamete donor or not); what attorney you use, what are the agreed monthly reasonable expenses, the level of medical aid and life insurance that you elect to use, the gross income of your surrogate (loss of earnings), etc.

As an estimated range:

  •  IVF Medical costs: R50 000 – R135 000
  • Screening Costs: R 17 000 – R 25 000
  • Legal Costs: R 60 000 – R 85 000
  • Monthly costs during the surrogate journey: R10 000 – R 15 000

What does the screening process involve?

The screening process includes:

  • Legal consultations to explain the law, process and responsibilities and requirements;
  • Psychological assessment
  • Medical Assessment
  • Criminal background check

Can the surrogate take our baby?

No, there will be a valid court order in place confirming that the surrogate mother and her partner have no rights or responsibilities towards that child.

Can the commissioning parents refuse to take the baby?

No, there will be a valid court order in place confirming that the child is theirs.

What about terminating the pregnancy?

The decision to terminate a pregnancy lies with surrogate mother, but she must inform and consult with the commissioning parent/s and the termination must be done in accordance with the requirements of the Choice of Termination of Pregnancy Act. 

Surrogate mothers are screened to ensure that they are amenable to the fact that the child is not their child and that they will abide by the decision of the commissioning parents. The counter also applies, that the commissioning parents will not fight a termination where the pregnancy is a risk to the life and/or health of the surrogate mother. 

South Africa is yet to see a court challenge between a surrogate mother and commissioning parents relating to termination of pregnancy. We are therefore unsure as to which way the courts will decide, or whose rights will outweigh the others. 

Contact us now to find out more about Surrogacy options 

 

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