Seven Interesting Facts about Surrogacy

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.  

Who gets to keep the ring?

TIP

The same applies to marriage and divorce. 

In your ante-nuptial agreement you may arrange to keep your engagement ring should you divorce (regardless of fault/ blame). As a policyholder of the Legal Hero product, you are covered for an ante-nuptial agreement.

Wishing you a great day, 

Legal Hero

www.legalhero.co.za 

Same Sex Marriages Introduction

Did you know? South Africa was the first country to proclaim:

a)      Sexual orientation as a human right in both its Interim (1993) and Final Constitution (1996);

b)      that discrimination based on sex, gender or sexual orientation was forbidden.

In spite of the above, the recognition of same-sex marriages only came much later as the South African Common Law (mixture of Roman Dutch and English Law) merely defined a marriage as "a union of one man with one woman, to the exclusion, while it lasts, of all others,” resulting in conflict and a direct contravention of Section 9 (the equality clause) of our Constitution.

It was not up until the lengthy and well renowned battle in Minister of Home Affairs and Another v Fourie and Another 2005, that the Common Law definition of marriage (and the marriage formula in the Marriage Act, to the extent that they excluded same-sex partners from marriage), was declared unfairly discriminatory and unjustifiable by the Constitutional Court. This judgment was handed down by nine justices, agreeing unanimously that the Common Law definition of marriage was unconstitutional and invalid. 

Wishing you a fantastic Friday and weekend ahead, 

Legal Hero. 

www.legalhero.co.za.