Commissioning Parents Through Surrogacy

Legalities of Surrogacy in South Africa:

The Childrens Act was promulgated in South Africa legalising the surrogacy processes required for surrogacy in South Africa. A particular Commissioning Parent and Surrogate are encouraged to reach agreement on pertinent matters before proceeding with any further screening. It is important for both parties to the agreement perform the most important screening of one another. They have to be comfortable with one another. Surrogacy is a very close and intimate relationship and the parties have to be comfortable with each other.

What to Discuss in Reaching Agreement Between Surrogate and Intended Parent (IP):
  • Support of the surrogate's partner and/ or family
  • Agreement on the fertility clinic. Please allow baby2mom to guide you about recommended clinics who specialise in this treatment.
  • Agreement on the lawyer.
  • Reimbursement of costs that directly relate to the surrogacy process
  • Insurance and/ or medical cover for the appropriate period
  • Transport to and from appointments
  • Agreement on whether the pregnancy will proceed in the event of abnormality or deformity
  • Agreement on a potential multiple pregnancy
  • Whether both the commissioning parents will attend the internal scans for the surrogate and whether she is comfortable with a man attending internal scans
  • The frequency of contact
  • Type of birth and who will attend this and further details - such as what exactly will happen at this point, who holds the baby first, etc.
  • Continued contact after the birth
  • Nature of relationship/ friendship
  • Counselling for all parties
  • Number of IVF attempts and period between IVF attempts
  • Next steps in the event of the pregnancy not proceeding for whatever reason
  • Actions in the event of death of commissioning parents
  • Discussions in the event of the relationship status changing during the course of the pregnancy – due to divorce, death, etc.
  • The agreed gynaecologist after 12 weeks – if the surrogate is located in Johannesburg, she will have appointments with the fertility specialist for the first three months
  • Involvement of the surrogate in the event of prematurity
  • Breastfeeding and/ or breast milk - it is not encouraged that a surrogate breastfeed of donate her breast milk as this may create bonding challenges. It is ideal that her body start to feel normal as quickly as possible.
  • When the contract/ agreement is determined as concluded
  • Any aspects of special mention.

Once commissioning parent and surrogate have agreed to necessary aspects, next steps include the medical and psychological screening. The surrogate is required to be medically and psychologically screened to ensure that she understands the surrogacy process and is medically fit to carry a baby.

The commissioning parent needs a medical requirement to proceed with surrogacy.

Once the medical and psychological reports are ready, these can be presented to support the legal surrogate motherhood agreement. This surrogate agreement is presented to the High Court for approval before any fertility treatment can proceed. Upon the approval of the court, the commissioning parent has parental rights and responsibilities, which means that they can register the child with their names on the birth certificate and the surrogate mother has no further responsibilities.

The restrictions are that:
  • Parties to the agreement must have South African domicilium. This means residence in South Africa as well as intent to have permanent residence in South Africa.
  • The partner of the surrogate must be supportive of the process.
  • The gametes or genes of at least one of the commissioning parents must be used in the fertility treatment.
Who Needs a Surrogate Mother:
  • Woman requiring IVF treatment who will require hormonal treatment and whose medical condition will be adversely affected by the artificial hormones
  • Persons exposed to medical risk by being pregnant
  • Persons who have a permanent and irreversable medical condition
  • Woman who have had a full or partial hysterectomy.

A surrogacy program is an emotional process. Fortunately South Africa is an advanced country that supports infertile people to have a surrogacy solution. For many people this is a dream answered and provides comfort that can really save lives and heal broken hearts.

baby2mom Egg Donation Agency specialises in egg donation services. We have however prepared relevant information pertaining to surrogacy to offer as support for all parties involved.

Guidelines and Steps proposed are as follows:
  • Find a surrogate mother.
  • Consult with the attorneys on relevant legal aspects.
  • Once agreement on certain aspects has been reached, secure the appropriate medical and psychological screening to obtain required documents to be submitted to the High Court.
  • Only once the court order has been obtained, may embryo transfer take place.

Please refer further enquiries to the lawyer.