In this podcast, Karen Horstman, an expert on surrogacy law and a valued member of the team at Schuld Inc Attorneys, explains the legal complexity of surrogacy, an arrangement in which a woman carries and delivers a child for a couple or person whose permanent, irreversible condition prevents them from having their own child.
This may be a traditional surrogacy, in which the surrogate’s egg is fertilised using the intended father’s or a donor’s sperm, or it may be a gestational surrogacy, in which the embryo is fertilised in vitro and transferred to the surrogate.
This may be a traditional surrogacy, in which the surrogate’s egg is fertilised using the intended father’s or a donor’s sperm, or it may be a gestational surrogacy, in which the embryo is fertilised in vitro and transferred to the surrogate. In this case, either the eggs or the sperm, or both, must come from the commissioning parents.
Surrogacy laws differ widely from country to country. It is vital that commissioning parents employ an attorney with experience in the field to draw up and agreement that must be confirmed by the High Court before the process begins. Without such an agreement the surrogate remains the child’s legal parent.
In South Africa, surrogacy is regulated by Chapter 19 of the Children’s Act, 38 of 2005. The law stipulates that commercial surrogacy, in which the surrogate is paid more than her medical and legal expenses, is illegal; it sets out physical and psychological requirements that the surrogate mother must fulfil, and the residency restrictions that apply to all parties. The agreement will only be confirmed if it includes adequate provisions for the contact, care, upbringing, general welfare and best interest of the child.
Karen explains the finer details and answers questions about pregnancy termination, parental rights and preparing for all eventualities. Most importantly, she points out that with the support of someone skilled in this highly specialised field, the experience can be all that it should be: the realisation of a cherished dream.