Understanding surrogacy

There are two main different types of surrogacy: traditional surrogacy and gestational surrogacy.

Traditional surrogacy is no longer used as it is a very complicated process, both emotionally and legally. This is due to the fact that in traditional surrogacy, the surrogate is artificially inseminated with the intended father’s sperm. Because the surrogate’s own eggs are used, she is the genetic mother of the child to whom she gives birth.

Gestational surrogacy is a more modern approach to family building. In this type of surrogacy, eggs from the intended mother are collected and fertilised in a lab with sperm from the intended father through an assisted reproductive therapy (ART) called In-Vitro Fertilization (IVF). The fertilised eggs are then transferred to the surrogate’s uterus. Where necessary, the sperm and eggs can also be supplied by egg and sperm donors.

What this means is that the gestational surrogate is not genetically related to the baby and is merely a carrier.

In many countries, including South Africa, only altruistic surrogacy is legal. In an altruistic surrogacy arrangement, surrogates are not compensated for their time, risk or effort.

When is surrogacy recommended?

Surrogacy is recommended for couples or individuals who are unable to carry a pregnancy for a number of possible reasons.

Most commonly, surrogacy is recommended to couples when a health condition prevents a woman from becoming pregnant or from carrying a pregnancy to full term, for example, when a woman was born without a uterus or if her uterus was removed or damaged – for example, as a result of cancer treatment.

It is also recommended for women when there is a possibility of a high-risk pregnancy or if there were complications with previous pregnancies. After miscarriages and other fertility setbacks, gestational surrogacy might also be recommended.

Surrogacy is also an option for couples who are affected by infertility and have exhausted other possible fertility treatments.

Surrogacy also offers a family-building option for same-sex couples or single male parents who are cannot otherwise have children that are biologically related to them. Surrogacy thus paves the way for these couples to become biological parents and to start their family in a way they couldn’t in the past.

How surrogacy works in South Africa

With surrogacy, the aim is to create the optimal situation for the birth of the surrogate baby. This makes choosing the right surrogate crucial.

A surrogate may be a family member, a friend or a previously unknown third party. The typical surrogate is aged between 21 and 40, and is in good physical, emotional and mental health. She must also be financially stable, with at least a middle-class income. She must have had at least one pregnancy and viable birth, and must also have a living child of her own. From a medical point of view, this is important, because if the surrogate has had a viable birth of a full-term baby, the medical practitioners know how her body will react to a pregnancy and whether there were any complications during her previous pregnancy or birthing. A surrogate must also not have had more than two previous caesarean sections.

In South Africa, a woman must also have psychological evaluations before becoming a surrogate, this to ensure that she wants to be a surrogate for the correct reasons, and that she is emotionally strong enough to give the baby back to the intended parents after the birth.

Because the right surrogate is so important, and because it is not easy to find a surrogate, intended or commissioning parents are well-advised to work with a reputable surrogacy agency or accredited fertility clinic.

Once the right surrogate has been found, the necessary legal contracts must be drawn up and a High Court order must be obtained as explained below. This process is compulsory and must be undertaken by advocate who specialises in family law.

Once all the legal aspect are in place, the medical procedures can commence. The IVF process – in short – involves collecting eggs from the female partner or an egg donor, which are then fertilised with sperm from the male partner or a sperm donor in a laboratory. The resulting embryo (fertilised egg) is then implanted into the surrogate’s uterus.

While this process sounds relatively simple, it is important to understand that IVF is not a single medical procedure or event, but a series of detailed and delicate procedures that are completed over a number of weeks. From the first day of the treatment cycle to the pregnancy test completed 14 days after the egg collection, the entire IVF process spans around 28 days.

The surrogate will then carry the baby until delivery, after which the baby is given back to the intended or commissioning parents, who are also the legal parents of the baby.

What do the legal aspects of surrogacy entail?

In South Africa, the Children’s Act regulates surrogacy arrangements. It was put in place to protect the rights of all parties involved in the surrogacy agreement – the surrogate, the intended parents and – most importantly – the child.

Among the most important regulations is the requirement that a surrogacy agreement between the surrogate and the intended parent/s must be confirmed and authorised by the High Court before any treatment can commence.

The intended parent/s – also called the commissioning parent/s – must provide the surrogate with and pay for a medical aid policy and a life insurance policy that will cover the surrogate during the time of the surrogacy and usually for three months following the birth of the baby. The commissioning parent/s names are entered directly onto the birth certificate after the birth – which means there is no longer a need for the commissioning parents to adopt the baby after birth.

Surrogacy in South Africa can only be done for altruistic reasons, which means that a surrogate may not receive any form of payment. However, a surrogate may be compensated for expenses that relate directly to the surrogacy and is also allowed to claim for reasonable and appropriate loss of earnings that result from the surrogacy/pregnancy/birth.

If married or in a relationship, the surrogate will need the written consent from her husband or partner to act as a surrogate, and she will not have any rights to the child after birth.

How to find out more about surrogacy

Whether you are an intended parent, or if you are interested in becoming a surrogate, the first step on your surrogacy journey is to find out more about the process of surrogacy.

We would like to invite you to reach out to our surrogacy facilitator at Cape Fertility by contacting us here. For more information about surrogacy and for answers to any questions you may have.