Surrogacy Law: How Surrogacy Lawyers Can Guide You As A Surrogate Mom
Due to the new Children’s Act, surrogacy law in South Africa has undergone major changes. These changes will not only have an effect on the intended parents and the surrogate, but also the legal representation involved in the agreement.
With the new laws, the lawyers involved will have to explain the changes to all the parties involved. One of the first legal aspects to discuss is whether the court will allow the intended parents to become involved in a surrogacy agreement. According to the new surrogacy law, people can only make use of surrogates if they are not able to conceive due to their gender, or if the woman is unable to give birth or carry the pregnancy to full term. Examples include gay couples and women who have undergone operations like hysterectomies.
The intended parents are not the only ones having to undergo approval to become involved in a surrogacy agreement. The surrogate mom has to undergo the same type of evaluation to convince the court that she is capable of being a stable surrogate.
Due to the changes in surrogacy law, many surrogates were forced to discontinue offering to carry a baby on behalf of the intended parents as the law stipulates that no surrogate is allowed to go through with a surrogacy agreement if she is doing it for financial reasons. The surrogate has to prove that she is financially stable and that she is going through with the agreement purely out of goodwill and no type of gain.
The Role of the Surrogacy Lawyers
Before surrogacy lawyers start discussions on surrogacy agreements, they have to ensure that both the intended parents and the surrogate undergo counselling and therapy to prepare them for the emotional rollercoaster ahead of them.
Lawyers can assist the intended parents with matters such as requesting to see the medical history of the surrogate, the financial responsibilities of the intended parents as well as the option to allow future contact with the child or not. As some intended parents form a bond with the surrogate during the surrogate process, it is not uncommon for the intended parents to give the surrogate permission to keep in contact with the child.
The surrogacy lawyers will also have to explain to both parties involved that that according to the new law, the child must be related to at least one of the intended parents – whether from an egg or sperm donation. This will mean that one of the parents will be the biological parent of the child. An important matter regarding the child’s parents is also covered by the new law. The intended parents are now, thanks to the new Children’s Act, the legal parents of the child and won’t have to undergo the adoption process required in the past.
In the surrogacy agreements custody of the child with regards to topics like death or divorce should also be stipulated. What will happen to the child if the intended parents divorced before the child is born or if both the parents die?
A Surrogate Mom’s Rights and Requirements
The legal representatives involved in the agreement have to explain the consequences of an abortion to both parties. Although the surrogate mom may choose to undergo an abortion under the Choice on Termination of Pregnancy Act, the person carrying out the abortion has to inform the intended parents of the surrogate’s choice.
If the surrogate is married or in a relationship, the court will insist on written approval by the surrogate’s husband or partner. Other legal requirements include matters like documented proof supplied by the surrogate of at least one viable pregnancy and delivery, and that she has at least one living child of her own.
The law states that the surrogate mom has to hand over the child to the intended parents as soon as is reasonably possible after the birth. Legal action will be taken against the surrogate if she is not willing to hand the child over, as she has signed a surrogacy agreement – a legal document.
Although the legal aspects are not always a positive or pleasurable experience for both parties, they can make or break a surrogacy agreement. The surrogacy law is there to protect the rights of all parties involved and therefore it should be respected and adhered to.
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