Andrew Martin runs a niche legal firm called Fertility Law which specialises in the law relating to artificial fertilisation of human beings.
Together with his affiliate firm, AMA Law (Andrew Martin Associates), they specialise in the law relating to assisted reproductive treatment (ART) and artificial fertilisation of people wishing to start or expand their family through surrogacy, egg/sperm donation or embryo donation.
We chatted to Andrew about the process of surrogacy and what the requirements are, should somebody be interested in becoming a surrogate:
What are the steps somebody would need to take in order to become a surrogate?
Well, there are a set of formal requirements:
The surrogate mother and her husband/partner must both reside in South Africa.
However, this is not necessarily a firm requirement, as the Court has the discretion to waive this requirement, depending on the circumstances.
The surrogate mother must:
- Be competent to enter into the surrogate motherhood agreement, i.e, she must be physically able to carry a pregnancy and be fully knowledgeable about the process from start to finish
- Be an appropriate person to become a surrogate mother
- Understand the legal consequences of the surrogacy agreement and the rights and obligations throughout the process.
- Understand that surrogacy is not a source of income
- Understand that the surrogate process is purely for altruistic reasons – a desire to help, with no obligation and not for religious reasons
- Have proof of at least one pregnancy and successful delivery
- Have a child of her own
What are the requirements should someone need a surrogate?
The Commissioning Parents must be unable to give birth 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.
Will I get reimbursed as a surrogate?
As a surrogate, you do not get paid an income. As discussed above, surrogacy is done for altruistic reasons. Chapter 19 of the Children’s Act makes provision for specific compensation as set out below:
- 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 (20 years 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 directly?
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 everything take?
It depends really. 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 an appropriate surrogate. This can take anywhere between a week to a year.
How much does the entire process cost?
Costs will vary based on:
- What fertility clinic you use – the top fertility specialists we highly recommend are HART Fertility Clinic
- How many rounds of IVF that you require
- What treatment you undergo (use of a gamete donor or not)
- What attorney you use – we definitely recommend Andrew Martin
- 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.
See an estimated breakdown below:
- 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 involve?
The screening includes:
- Legal consultations to explain the law, process and responsibilities and requirements;
- Psychological assessment;
- Medical Assessment;
- Criminal background check;
Can the surrogate change her mind and keep our baby?
No, there will be a legal 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 legal 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 completely cooperate with the procedures, including the fact that the child is not their child and that they will abide by the decisions of the commissioning parents. The same applies to the commissioning parents, whereby they 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.
If you have any questions relating to surrogacy or you have any fertility concerns, please get in touch.