South African And International Law related to Surrogacy.
In South Africa surrogacy is regulated by Chapter 19 of the Children’s Act 38 of 2005. Future parents and commissioning parties need to comply with the provisions of the Act. (Altruistic surrogacy is legal in South Africa.) In countries where surrogacy is allowed, South Africa is on par with the international position adopted in the Children’s Act.
No consistent international practice in the field of surrogacy exists due to the diversity in culture, customs, and traditions worldwide. Commercial surrogacy is prohibited in most countries, with India being the exception. Herewith a summary of most of the countries who have taken a decision on surrogacy.
France, Iceland, and Italy
These countries have legislative provisions prohibiting all forms of, altruistic and commercial surrogacy.
Georgia (formerly in the USSR/Soviet Union) and Ukraine
In Georgia surrogacy as well as ovum and sperm donation has been legal since 1992. A donor or surrogate mother has, under applicable law, no parental rights over the born child. Other countries seek to provide a comprehensive legal framework to regulate surrogacy. Surrogacy, along with ovum and sperm donation has been legal since 1992 in Georgia. Under applicable law, a donor or surrogate mother has no parental rights over the child born. Surrogacy and surrogacy in combination with egg/sperm donation, have been legal since 2002 in Ukraine. The child legally belongs to the prospective parents and the surrogate mother nor the donor has parental rights over the child born.
The surrogate is implanted with an embryo created by in-vitro fertilisation using the egg and sperm of the prospective parents (the Embryo Carrying Agreements Law of 1996 legalised gestational surrogacy). The child is thus genetically related to the intended parents, and genetically unrelated to the surrogate. This law made Israel the first country to implement a form of state-controlled surrogacy, in which every surrogacy agreement must be approved by the state. Surrogacy arrangements to be filed only by Israeli citizens who share the same religion. Only infertile heterosexual couples are allowed to hire surrogates who must be single, widowed or divorced.
The Netherlands and Belgium
There is a prohibition on commercial surrogacy while altruistic surrogacy is permitted.
Commercial surrogacy is prohibited while altruistic surrogacy is recognised by the Human Reproduction Act of 2004.
Individual state regulation is allowed. Queensland prohibits all forms of surrogacy while commercial surrogacy is forbidden and altruistic surrogacy is allowed in some limited circumstances in Victoria. Western and South Australia allow for altruistic surrogacy under the Surrogacy Act of 2008 and the Family Relationships Act of 1975 for legal couples of the opposite sex.
United States of America
Individual states regulate surrogacy under different laws, which range from a total prohibition of all forms of surrogacy on the one hand to the recognition of commercial surrogacy on the other, with some states in-between allowing for altruistic surrogacy, while prohibiting commercial surrogacy.
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