Children's Act, 2005 (Act No. 38 of 2005)

Chapter 19 : Surrogate Motherhood

295. Confirmation by court

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A court may not confirm a surrogate motherhood agreement unless-

a)the commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible;

b)the commissioning parent or parents -

i)are in terms of this Act competent to enter into the agreement;

ii)are in all respects suitable persons to accept the parenthood of the child that is to be conceived; and

iii)understand and accept the legal consequences of the agreement and this Act and their rights and obligations in terms thereof;

c)the surrogate mother-

i)is in terms of this Act competent to enter into the agreement;

ii)is in all respects a suitable person to act as surrogate mother;

iii)understands and accepts the legal consequences of the agreement and this Act and her rights and obligations in terms thereof;

iv)is not using surrogacy as a source of income;

v)has entered into the agreement for altruistic reasons and not for commercial purposes;

vi)has a documented history of at least one pregnancy and viable delivery; and

vii)has a living child of her own;

d)the agreement includes adequate provisions for the contact, care, upbringing and general welfare of the child that is to be born in a stable home environment, including the child’s position in the event of the death of the commissioning parents or one of them, or their divorce or separation before the birth of the child; and

e)in general, having regard to the personal circumstances and family situations of all the parties concerned, but above all the interests of the child that is to be born, the agreement should be confirmed.