Surrogacy and Laws on Surrogacy in South Africa: A Comprehensive Guide

Surrogacy is a complex process that involves a woman carrying a pregnancy on behalf of another person or couple. In South Africa, surrogacy is legal under specific conditions and there are laws in place to regulate the process. In this article, we'll provide a comprehensive guide to surrogacy and laws on surrogacy in South Africa, including legal requirements, types of surrogacy and the surrogacy process.

What is Surrogacy?

Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman (the gestational carrier) agrees to bear a child for another person or people, who will become the child's parent/s after birth.

Legal Requirements for Surrogacy in South Africa

In South Africa, the Children's Act of 2005 regulates surrogacy. A commissioning parent may be single, married or be in a partnership.  At least one parent must be domiciled in the Republic of South Africa and the commissioning parent(s) must be financially stable in order to adequately provide for the needs of a child/ren. Gay, heterosexual, transgender or agender persons may qualify.

In order for an intended commissioning parent(s) to qualify to use a surrogate, it is required that the intended commissioning parent(s) are suitable persons to be parents and that the commissioning parent(s) have a condition, which is permanent and irreversible, that prevent such a commissioning parent(s) from carrying a pregnancy to full term.

Who can be a Surrogate?

To be a surrogate in South Africa, a woman must be healthy, have a body mass index (BMI) below 35, be under age 42, have had at least one healthy, term pregnancy with a living child of her own and not have had more than two caesarean sections. If a person has not yet had a child, they are unfortunately not eligible to be a surrogate.

A surrogate must be living in South Africa legally, with a valid recognised visa or permit or be a South African citizen in comfortable living circumstances and have gainful employment or be financially supported by the surrogate’s spouse or partner. A surrogate must not be taking any chronic medication and must be in excellent health. A surrogate can be single, married or in a relationship. 

Types of Surrogacy

There are two types of surrogacy, namely:

• Traditional Surrogacy is when a woman (called a surrogate mother) carries and delivers a pregnancy conceived with her eggs for a couple. After the birth she gives the child to the intended parents with whom she has a contract.

• Gestational Carrier Surrogacy is when a woman (called a gestational carrier) becomes pregnant after an embryo is transferred into her uterus. The embryo was created from another woman’s eggs, and so the gestational carrier is not genetically related to the child. After birth, she gives the child to the biological mother and/or father.

The most common form of surrogacy used is Gestational Carrier Surrogacy.

What Does Surrogacy in South Africa Entail?

In South Africa, the commissioning parents and the surrogate will enter into a Surrogacy Motherhood Agreement and then apply to the High Court in whose jurisdiction they are domiciled prior to any treatment being undertaken by fertility clinic, for an order in terms of which the Court is asked to confirm the agreement. Surrogacy in South Africa is regulated by Chapter 19 of the Children’s Act, 38 of 2005.

What is a Surrogacy Motherhood Agreement?

A Surrogacy Motherhood Agreement makes provision for the surrogate mother to be artificially fertilised for the purpose of bearing a child for the commissioning parent/s and upon the birth of the child or within a reasonable time thereafter, the surrogate mother undertakes to hand over a child to the commissioning parent/s with the intention that the child concerned is the legitimate child of the commissioning parent/s.

The Surrogacy Motherhood Agreement confirms the parental responsibilities and rights are those of the commissioning parents and not those of the surrogate mother (of her husbands if the surrogate mother is married) and to authorise the doctors to perform the artificial fertilisation.

Remuneration of a Surrogate

South African law provides that commercial surrogacy is illegal and surrogacy is only allowed on an altruistic basis. The only payments that are allowed relate to the payment of professional services (medical, legal and psychological), reasonable expenses, loss of earnings, medical aid and life insurance, all of which are strictly regulated in the Surrogate Motherhood Agreement.

Surrogacy Applications

A surrogacy application is an application to the High Court in whose jurisdiction the commissioning parents and/or the surrogate are domiciled and in terms of which application, the Court is requested to confirm and approve the Surrogacy Agreement.

Is Commercial Surrogacy Allowed in South Africa?

Commercial surrogacy is illegal in South Africa. As a result, it is critical that the Surrogacy Agreement makes provision for all payments that are to be paid pursuant to the surrogacy arrangement as any payments that are not specified therein, are considered illegal and carry criminal sanctions.

Permissible payments which should be included in the Surrogacy Agreement include, inter alia, payments for professional services (legal, medical and psychological), reasonable expenses, loss of earnings, medical aid and life insurance.

What is an Egg/Sperm Donor Agreement?

A Known Gamete (Oocyte/Sperm) Donation Agreement or a Known Embryo Donation Agreement records the party’s intention in relation to the donation and to regulate, inter alia, parental responsibilities and rights, disclosure of information, the identity of the parties, medical and genetic testing, etc.

Such an agreement is a legal requirement that is required before a competent person can proceed with any removal, withdrawal or transfer.

What is a Embryo/Gamete Disposition Agreement?

An Embryo or Gamete Disposition Agreement is a legal agreement regulates what happens to a Recipient or couple’s embryos or gametes should a specific unintended consequence of life occur. This type of agreement is a legal binding instruction given by a legally competent Recipient or couple regarding the type of treatment and the disposal of any embryos or gametes that are cryopreserved and stored at a clinic.

Surrogacy Attorneys

Our attorneys understand the fertility process and just how stressful and emotionally taxing it can be, some of whom have personally gone through this journey. As a result, we are passionate about providing our clients with bespoke individual care and attention during their journey. We have an extensive knowledge and network of Fertility Clinics and Doctors, Obstetricians, surrogates. We will manage the entire legal process from beginning to end and support you through the process helping you to minimise your risk and avoid costly mistakes.