The Path To Parenthood: Surrogacy Laws In South Africa


Have you ever wondered how you might help someone else start a family, or perhaps you’re seeking information on how to begin your own family journey through surrogacy? Many individuals dream of starting families but face challenges on their own. In South Africa, surrogacy offers a pathway to parenthood, but understanding the legal framework surrounding it is essential.

Surrogacy involves a woman carrying a child for the intended parents. Surrogacy laws in South Africa are governed by the Children’s Act 38 of 2005 and mandate court-approved agreements, specify genetic criteria and regulate necessary medical fees to ensure fairness and safeguard all parties involved.

Are you considering surrogacy in South Africa? If so, understanding the legal framework is crucial. From the necessity of court confirmation to regulations on genetic origins and payments, let’s delve into the critical aspects of surrogacy laws to ensure a smooth and legally compliant process for all involved.


Understanding Surrogate Motherhood Agreements

Surrogacy arrangements in South Africa are governed by strict legal requirements to protect all parties involved. Firstly, you must document any surrogate motherhood agreement in writing, ensuring all parties sign it before submitting it to the courts. At the same time, this agreement will only be considered valid if it meets particular criteria, such as the following:

  • All parties must live in South Africa when they enter into the agreement.
  • At least one of the commissioning parents, or the single commissioning parent, must be living or based in South Africa.
  • If applicable, the surrogate mother and her spouse or partner must also be living or based in South Africa.
  • The High Court must confirm the agreement within the jurisdiction where the commissioning parent(s) reside.

In cases where the surrogate mother is married or in a permanent relationship, the consent of her spouse or partner is required. Similarly, if the commissioning parent is married or in a permanent relationship, the consent of their spouse or partner is necessary for the court to confirm the agreement.


How Does The Genetic Origin Of The Child Affect The Agreement?

The validity of a surrogate motherhood agreement hinges on the genetic origin of the child. Ideally, conception should involve the gametes (eggs and sperm) of the commissioning parents.

However, exceptions are allowed if biological, medical, or other valid reasons prevent this. In such cases, using gametes from at least one of the commissioning parents or the single commissioning parent is acceptable.


Do You Need Confirmation By Court Before Going Ahead With Surrogacy?

Surrogacy laws in South Africa state that before you can confirm a surrogate agreement, you must meet specific criteria, which a court will need to confirm. The court must ensure that:

  • The commissioning parent(s) cannot permanently and irreversibly conceive and carry a child.
  • All parties involved must be competent to enter the agreement and understand its legal consequences.
  • The surrogate mother has altruistic motives, is not looking for financial gain, and has a documented history of at least one pregnancy with a viable delivery, along with a living child of her own.
  • Adequate provisions are made for the child’s welfare, including arrangements for their care, upbringing, and future stability.


The court evaluates the personal circumstances of all parties involved, with the primary consideration being the child’s best interests.


Rules Surrounding The Artificial Fertilisation Of The Surrogate Mother

Artificial fertilisation of the surrogate mother must adhere to specific regulations. It can only occur after the court confirms the surrogate motherhood agreement and must occur within 18 months of the agreement’s confirmation.

Additionally, all procedures must comply with the conditions of the National Health Act No. 61 of 2003 to ensure the safety and well-being of the surrogate mother and the child.


The Legal Implications Of A Surrogate Motherhood Agreement

Once a surrogate motherhood agreement is confirmed, it has significant legal implications. The child born to the surrogate mother is considered the child of the commissioning parent(s) from the moment of birth. The surrogate mother relinquishes all parental rights and obligations, and the commissioning parent(s) assume full responsibility for the child’s care and upbringing.

Any agreement not complying with these provisions is deemed invalid, with legal consequences for all parties involved.


Can A Surrogate Terminate The Surrogate Agreement?

Surrogacy laws in South Africa stipulate that a surrogate mother who is also the genetic mother of the child retains the right to terminate the surrogate motherhood agreement within 60 days after the birth of the child. She will need to communicate this termination to the court through written notice.

Upon receipt of the notice, the court will review the circumstances surrounding the termination and assess whether it is in the child’s best interests. The surrogate mother acquires no liability to the commissioning parents if she exercises her right to terminate the agreement, except for compensation for any payments made by the commissioning parents following the surrogacy agreement.


What Are The Effects Of A Termination?

If the surrogate mother terminates the surrogate motherhood agreement post-birth, the parental rights established in the agreement are also terminated. In such cases, the child becomes the responsibility of the surrogate mother, her spouse or partner, if applicable, or if none, the commissioning father.

The commissioning parents lose their parental rights and can only obtain such rights through adoption. Additionally, the child has no claim for maintenance against the commissioning parents or any of their relatives.


Surrogacy Laws In South Africa: Termination of Pregnancy

In the event of a termination of pregnancy, the surrogate mother retains decision-making authority. However, she must inform the commissioning parents of her decision and consult with them before proceeding with the termination. Compensation may be required if the termination is not based on medical grounds.


Surrogacy Laws In South Africa: Financial Transactions And Obligations

Financial transactions related to surrogacy in South Africa are strictly regulated. Monetary or in-kind rewards in connection with surrogacy agreements are prohibited, except for specific expenses directly related to the surrogacy process.

Specific expenses may include costs related to artificial fertilisation, pregnancy, and the child’s birth. Compensation for loss of earnings incurred by the surrogate mother and insurance coverage for potential risks arising from the pregnancy may also be permitted.


Surrogacy Laws In South Africa: Identity Protection

South African law prohibits publishing any information that could reveal the identities of any involved parties without explicit written consent. This prohibition safeguards the privacy and identity of all parties involved in surrogacy arrangements. Court proceedings related to surrogacy agreements are kept confidential, and the identities of individuals born through surrogacy are protected.


Are There Any Prohibited Acts Involved With Surrogacy In South Africa?

Specific surrogacy-related actions are prohibited by South African law to maintain the integrity of surrogacy arrangements and protect the rights of those involved. These include artificial fertilisation of a woman without court authorisation and any attempt to solicit surrogacy arrangements for compensation. Violation of any of these regulations may result in legal consequences.

Understanding the legal framework surrounding surrogacy in South Africa is essential for all parties involved. By adhering to the laws and regulations, individuals can navigate the surrogacy process with clarity and confidence, ensuring the protection of the rights and welfare of all parties, including any child born through surrogacy.

Surrogacy laws in South Africa can be challenging, given their complexity and the emotional stakes. That’s why it’s crucial to enlist the aid of an experienced family lawyer who has the experience to guide you through every step of the process.

At Burnett Attorneys and Notaries, we specialise in surrogacy and family law matters. Our knowledgeable team is dedicated to providing compassionate and educated assistance to help you achieve your family-building goals. Please don’t hesitate to contact us for legal guidance tailored to your unique situation.