Before we look to the future, we have to know where it all started. Let us take a closer look at the top eight questions that people have asked about starting surrogacy process in South Africa, from start to finish. While there are many legal implications and a certain amount of red tape, once you’re in ‘the know’, what initially seems like an insurmountable task, can start to seem a little more approachable.

We examine the Children’s Act, the history of surrogacy in South Africa, surrogacy options and implications, applying for surrogacy at the High Court, the documents that you will need, and key role-players in the process.

Equip yourself with knowledge and become a pro at the process.

The History of Surrogacy in South Africa – How has the Children’s Act changed?

South Africa is at the forefront of ‘Surrogacy Practice’ in the world currently.

We have achieved a highly regulated Surrogacy System with specific laws relating to, and assisting to control surrogate motherhood agreements. This makes it a far more comfortable journey for both the surrogate, and intended parents to navigate.

Currently, Surrogacy in South Africa is regulated by Chapter 19 of the Children’s Act, 38 of 2005 (the “Children’s Act”).

To give some perspective, before Chapter 19 came into law on 1 April 2010, the common practice was to enter into a written Surrogate Motherhood Agreement, and then on the birth of the child or children, to approach the relevant Children’s Court for a known adoption. This was a highly emotional way of approaching surrogacy with the obvious risk that the surrogate could always make the choice to keep the child after birth.

Currently, we are lucky to have a much more simplified process.

  • What are the different options for Surrogacy in South Africa?

There are two main types of Surrogacy – each with vastly different legal implications.

Traditional Surrogacy – Traditional surrogacy involves natural or artificial insemination of a surrogate.

The sperm that will be used will be that of the commissioning (or intended) father. The resulting child or children born are genetically related to both the commissioning father and the surrogate.

Gestational 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 embryo is created using the intended mother’s egg and donor sperm.

  • What is process of applying for Surrogacy in South Africa?

The process of looking for, or even considering a surrogate, can be daunting. It’s all about knowing where to start, what legal professionals to approach for assistance and getting your paperwork in order.

We have broken down the basic process from start to finish.

  • The First step is to be fully assessed by a reproductive medical specialist, who can then advocate for the fact that you are not able to give birth due to a pre-existing medical condition, illness or you are in a same sex marriage that consists of two non child-bearing individuals etc.
  • The medical professional could then refer you to a lawyer who specialises in ART Law, since the surrogacy process is intricate and requires the necessary skills possessed by someone in that very specific field.
  • From here on psychological evaluations are drawn up, a social worker is assigned and a willing surrogacy candidate is selected.
  • It is here that a written surrogate motherhood agreement must be entered into between the parties and a High Court application, in terms of Chapter 19 of the Children’s Act, must be made to the Court in which CP are domiciled (ordinarily resident).
  • Nothing can happen it terms of initiating the fertility process, until the agreement is signed and the high court order is granted.

  • What specific documents does the High Court need from you when applying for the Surrogacy process in South Africa?

Getting all your documents together to apply for something as life-changing as surrogacy can feel like an overwhelming administrative task.

We’ve listed the documents that you will need to submit to the High Court for surrogacy:

  • A medical report
  • A psychological report
  • A social worker’s report
  • A written surrogate motherhood agreement entered into between the commission parent/s and the proposed surrogate.

These provide the High Court with the necessary information that they need to make their assessment.

  • Who is eligible to be a surrogate in South Africa?

A surrogate mother is an adult woman who enters into a surrogate motherhood agreement with the commissioning parent(s) or intended parents. 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 will ultimately become the parent(s) of the child or children.
What other boxes do you need to tick?

  • You need to be medically fit and healthy. You will get screened by the Commissioning Parent(s)fertility specialist and clinic.
  • 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.

  • Who can make use of the option for surrogacy in South Africa?

Not just anyone is able to use a surrogate. It is a highly regulated process which protects both the surrogate and intended parents to the highest degree.

In order for an intended or commissioning parent(s) to qualify to use a surrogate, it is required that they show the Court that intended commissioning parent(s) are suitable persons to be parents.
It is also necessary to show the Court that the commissioning mother has a condition, which is permanent and irreversible, that prevents her from carrying a pregnancy to full term – such as absent uterus or malformation of the uterus; previous organ transplant.

Other scenarios such a two males in a same-sex relationship would also qualify on the grounds that it is impossible for them to conceive.

Only when the High Court is satisfied on both accounts, they will grant permission for a surrogate to be used for the birth of a child.

  • Who are the key role-players in the surrogacy process in South Africa?

We are aware of the actual surrogate, and the intended or commissioning parents involved in the surrogacy process, but so many people are involved in a complete surrogacy journey.

Starting with a reproductive medical specialist, an IVF co-ordinator a fertility lawyer, a psychologist, a social worker, the members of the High Court and then, of course the spouse or partner, even the family of the surrogate.

It truly takes a team. A village. To produce one very valuable life for a parent or parents that are desperate for a child.

  • The Roles of Commissioning or Intended Parents and Surrogate

Commissioning Parents or Intended Parents

Commissioning Parents or Intended Parents (in South Africa) are individuals or couples who cannot conceive on their own – for any reason – and choose surrogacy to build their family.
They will then become the primary parents to the child or children born from the surrogacy.

Become a Surrogate

Becoming a surrogate is a big step and a solid commitment towards assisting in the creation of another person’s envisioned family. Before becoming a surrogate, a lengthly and thorough surrogate application form must be completed to ensure that surrogacy is the right choice for you.

There are many factors that can help to determine whether a woman is the right person to carry your child: her physical health, genetics, emotional well being, and support network all have a bearing on the development and well being of your child. Beyond that, one also has medical, legal, and financial considerations to keep in mind.

If you are interested in becoming a surrogate in South Africa, or you are embarking on a surrogacy journey which requires you to source the right surrogate for your potential family – we have put together a number of factors to consider.

Firstly, is the potential surrogate married? It is important to consider whether she has the support of her partner. If not, a very strong support network is essential.

Secondly, a list of all known health issues, previous surgeries, hereditary diseases, mental illnesses, allergies, and a list of medications taken is extremely important for the surrogate to discuss, as this will have severe implications on the pregnancy if certain information is not disclosed.

Questions pertaining to health of previous pregnancies, siblings and children and other family in general will also be discussed. AIDS and HIV will also of course be a factor, and any prior tests will be discussed.

Lastly, details that surround the commissioning parents will be discussed, such as the surrogate’s involvement with them, whether you are prepared to become a surrogate, your benefits as a surrogate etc. You will ascertain whether the commissioning parents will be present for delivery, the surrogates health insurance, and of course signing an agreement which states that as a surrogates you will relinquish all claims to the child as a surrogate after the birth.

In conclusion, throughout the journey of Surrogacy in South Africa, both the surrogate and intended parents will have to go through implication counselling which is required by law to make sure that the necessary level of support, understanding and legal regulation is being applied to both parties, and that the best possible outcome will be possible for the child born from the surrogacy, as well as the families involved.

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