A ‘surrogate mother’ is defined in the Children’s Act 38 of 2005 as an adult woman who enters into a surrogate motherhood agreement.
Such an agreement is entered into between the surrogate mother and the commissioning parents or parent.
The agreement states that the surrogate mother will be artificially fertilised for the purpose of bearing the child for the commissioning parents or parent.
The surrogate mother will be required to hand over such a child to the commissioning parents or parent upon its birth or within a reasonable time thereafter.
The intention of this agreement is that the child will become the legitimate child of the commissioning parents or parent.
Surrogate Motherhood Agreement Requirements
There are several requirements that need to be met when concluding a valid surrogate motherhood agreement. These include:
• The agreement must be in writing and signed by all the parties to the agreement;
• The agreement must have been entered into in South Africa;
• At least one of the commissioning parents or the commissioning parent in the case of a single commissioning parent must be domiciled in South Africa at the time of entering into the agreement;
• The surrogate mother and her partner (if any) must be domiciled in South Africa at the time of entering into the agreement; and
The agreement must be confirmed by the High Court in the area where the commissioning parents or parent are domiciled or resident.
In the event that the commissioning parent is married or in a permanent relationship, it is required that the husband, wife or partner of the commissioning parent gives written consent to the agreement and becomes party to the agreement. The husband or partner of the surrogate mother is also required to give his/her written consent.
If this consent is withheld unreasonably by a husband, wife or partner who is not the genetic parent, the court may confirm the agreement.
A recently disputed requirement is that the surrogate motherhood agreement is invalid if the conception is not affected by using the gametes of both the commissioning parents, or in the event that this is medically impossible, the gamete of at least one of the commissioning parents must be used.
If the commissioning parent is a single parent, the gamete of that parent must be used. This was recently confirmed in the Constitutional Court case of AB and Another v Minister of Social Development  ZACC 43.
It is further required that the commissioning parents or parent must be unable to give birth to a child, and this condition is permanent. This requires a deeper examination into female infertility.
Types of Female Infertility
There are two types of female infertility: conception infertility and pregnancy infertility. Conception infertility is where the mother is unable to contribute a gamete for the purpose of conception through artificial fertilisation.
Pregnancy infertility is when the mother is able to fall pregnant (whether the gamete is her own or that of a donor) but the mother is then unable to carry the pregnancy to term (the result is a miscarriage).
In relation to the requirement that the court will not confirm the agreement unless the parents are unable to give birth to a child, to fulfil this requirement the mother must be pregnancy infertile. It is insufficient for the mother to merely be conception infertile.
The surrogacy agreement must be confirmed by the High Court before the surrogate mother may undergo the artificial fertilisation.
The surrogacy agreement will lapse if the surrogate mother has not been artificially fertilised within 18 months of the confirmation of the agreement by the court.
Although surrogacy agreements are regulated by the Children’s Act, the artificial fertilisation and the execution of the agreement is regulated by the Health Care Act 61 of 2003.
Provided that the surrogate motherhood agreement meets all the requirements and is carried out accordingly the child will be the child of the commissioning parents. If the agreement does not meet the requirements the child will be the child of the woman that gave birth to the child.
Greyvensteins Inc. can assist with the drafting and carrying out of the surrogate motherhood agreement to ensure compliance with the requirements.