The Amended Childrens Act on Surrogacy

This overview of the law as it relates to surrogacy refers to the case Parte WH and others 2011 (6) SA 514 (GNP).

The conclusion by the Court in the case of Van der Linde has certainly set a new outlook on the parental role. Before the enactment of the Children’s Act, it would appear that the only way in which commissioning parents could become the legal parents of the child was by way of adoption in terms section 17(a) of the Child Care Act 74 of 1983 after the birth of the child.

At the prospect of not being able to conceive or carry a baby to full term, or at the risk of endangering a mother’s life by pregnancy, the majority of people might decide on surrogacy. As there is not much of a different alternative to gays and lesbians in a relationship where they wish to have a child genetically linked to either one of them they would also opt for a surrogacy arrangement.

The amended Children’s Act now provides the legal framework for willing parties to facilitate surrogacy agreements, provided that the High Court has confirmed, as valid, all relevant surrogacy agreements.

Section 292 of the Act provides for the formal requirements of a valid surrogate motherhood agreement and in terms of Section 295, a court may not confirm the agreement unless certain requirements are met.

The Act is specific about the content of the issues pertaining to the agreement, which include:

  • consent
  • the genetic origin of the child
  • when artificial fertilization could take place
  • termination of the agreement, and
  • the effect of termination of the agreement.

The question of payment is also dealt with in the Act regarding surrogacy and generally prohibits commercial surrogacy and only permitting payments related to compensation for expenses, loss of earnings and bona fide professional, legal and medical services related to the confirmation of a surrogate motherhood agreement.

The legal implications of this relatively new development in our law could be rather complex and could also have far-reaching consequences for everyone involved despite the fact that the Children’s Act attempts to regulate and comprehensively structure the important aspects regarding surrogacy agreements.

When considering the Children’s Act, International Laws, and our Constitution, it becomes clear that an enormous number of problems may arise surrounding the implementation of the unconditional requirements of the Act.

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