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QUESTION 2 - LU 3 (SURROGACY) Cheat Sheet (DRAFT) by

Question with regards to surrogacy agreements and consent.

This is a draft cheat sheet. It is a work in progress and is not finished yet.

WHAT NEEDS TO BE IN A SURROGACY AGREEMENT

A surrogacy motherhood agreement is a contract been a surrogate mother and commis­sioning parents where the surrogate agrees to undergo artificial fertil­isation for the purpose of bearing a child for the commis­sioning parents. The surrogate mother agrees to hand the child over once is has been born with the intention that the child becomes the child of the commis­sioning parents.
Without a valid surrogate motherhood agreement, the surrogate mother would be considered the legal mother of the child.
Agreement must include adequate provision for the contact, care, upbrin­ging, and general welfare of the child that is to be born in a stable home enviro­nment. Must include child's position in the event of the death of the commis­sioning parents, a divorc­e/s­epa­ration before the birth of the child AND in general have regard for the personal circum­stances and family situations of all the parties involved.
ABOVE ALL the interests of the child that is to be born, the agreement should be confirmed.
 

WILL A VERBAL AGREEMENT BE VALID?

NO!
The surrogate motherhood agreement must be in writing and confirmed by the HIGH COURT whose jurisd­iction is the area where the commis­sioning parents are domiciled or habitually resident.

CONSEQ­UENCES OF NO VALID AGREEMENT?

When a woman gives birth as a result of artificial insemi­nation, they are regarded as the child's mother.
A VALID SURROGATE MOTHERHOOD AGREEMENT is necessary in order for the birth mother to not be regarded as the LEGAL MOTHER of the child.
Without it, the surrogate mother would be considered the legal mother of the child.
No artificial insemi­nation of the surrogate mother may take place until the court has confirmed the surrogate motherhood agreement. Without one, this cannot take place.
The agreement also ensures that the commis­sioning parents are regarded as the parents of the child from the moment the child is born.
The surrogate motherhood agreement must comply with the provisions set out in CHILDREN'S ACT or else the agreement would be invalid and as a result of that, the child would be deemed the child of the surrogate mother.
 

WHOSE CONSENT IS REQUIRED?

COMMIS­SIONING PARENT
If the commis­sioning parent is married or involved in a permanent relati­onship, the written consent of the husban­d/w­ife­/sp­ous­e/life partner of the commis­sioning parent is required and they become party to the agreement.
SURROGATE MOTHER
If the surrogate mother is married or involved in a permanent relati­onship, the written consent of the husban­d/w­ife­/sp­ous­e/life partner of the surrogate mother is required and they become party to the agreement.
If the husban­d/p­artner of the surrogate mother unreas­onably withholds consent, the court may still confirm the agreement.