Surrogacy Law In South Africa. What You Need To Know.
This overview of the law as it relates to surrogacy refers to the case Parte WH and others 2011 (6) SA 514 (GNP).
As a result of the fact that surrogacy has very far-reaching implications when it comes to the legal side of such an arrangement, it has been dealt with, in very definite terms, in the amended Children’s Act. The Supreme Court (or High Court) has to approve all agreements and it is therefore important for anyone considering surrogacy, to understand and be aware of the requirements. It is imperative for interested parties to consult with attorneys to ensure that proper procedures are followed and that the agreements are validated before any processes begin.
The South African government broadly recognizes and supports the rights of individuals to bear and raise children through various measures. It includes the right for parents to have their own child with their shared genetic link, or to adopt a child under certain circumstances. People who experience physical and medical difficulties in having their own child have the right to seek their own child through a surrogacy arrangement.
Interested persons are now allowed by the Act, for the legal requirements upon entering such agreements and requiring confirmation from the High Court which renders such agreements valid. An ad hoc committee on surrogacy motherhood, after considerable thought was given on the legal consequences, followed with the Act.
The central concept of ‘ the family’ in matters involving the best interests of the child, what constitutes a family and the roles traditionally associated with the component members of the family, has been the subject of considerable attention by our Courts over the past 17 years. The South African Constitution seeks to ensure the full enjoyment by everyone of all the rights in the Bill of Rights founded as it is on the principle of equality and non-discrimination.
The rights of gays and lesbians to choose and form relationships and to marry and participate in family life have been unconditionally recognized to be consistent with the principles of equality and dignity enshrined in the Constitution.
The recognition of the rapidly-changing nature of how a family is made up and defined and the place of gender in the determination of the “quality of the parental role” enjoyed the attention of the Court in the case of Van der Linde, where the Court concluded that:-
“… for decades it has been accepted that the quality of a parental role is determined by gender. It has been accepted that mothering was a component of a woman’s being only. At the present juncture, it is to be doubted whether that acceptance can, by itself, serve as a universally prevailing axiom. These days mothering is also part of a man’s being. The concept of mothering is indicative of a function rather than a “persona” and this function is not necessarily situated in the biological mother. It includes the sensitive attachment which flows from the attention devoted from day-to-day to the child’s needs of love, physical care, nutrition, comfort, peace, security, encouragement, and support. (…) Today the man has the freedom to reveal and live out the mothering feeling.”
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