1. Not for convenience
The artificial insemination of a surrogate mother is only lawful if the commissioning parent/ parents have a permanent and irreversible condition and are therefore unable to give birth to a child.
2. The surrogate mother may not receive any form of payment
The surrogate mother may not receive any form of payment or reward apart from reasonable hospital/ medical expenses.
3. The child and the commissioning parents must share genes
For a surrogate motherhood agreement to be valid, the genetic material of both commissioning parents, and if this is not possible, at least one of the commissioning parents MUST be used.
4. The surrogate mother may, in some instances, change her mind within 60 days after the child’s birth.
If the surrogate mother shares genetic material with the child (in the instance where only one of the commissioning parents’ genes were used), the surrogate mother may change her mind without incurring any liability.
5. A surrogate mother may get an abortion
The commissioning parents only receive full parental rights and responsibilities the moment the child is born. The surrogate mother must hand over the baby to the commissioning parents as soon as possible.
6. The child may not claim maintenance from the surrogate mother
The surrogate mother has no parental rights or responsibilities in terms of the surrogate child. The child may also not claim maintenance from the surrogate mother’s husband or partner.
7. Prior to 1 April 2010 there was no law regulating or prohibiting surrogacy
‘Mater semper certa est’ = Common Law rule stating that the mother who gives birth to the child is always the parent. This meant that the surrogate mother had to put the child up for adoption and the commissioning parents had to apply in order to adopt the child.
Today chapter 19 of the Children’s Act regulates surrogacy and explicitly states that no potential surrogate mother may be artificially inseminated without a High Court confirming the written surrogate motherhood agreement between the parties.