Surrogacy Law in South Africa

by | Feb 21, 2023

The breakthrough of the science of surrogacy has brought tremendous joy to thousands worldwide, and South Africa’s premier Surrogacy Law expert, Robynne Friedman, guides us through the legalities of starting the surrogacy process.

In simple terms, surrogacy is an arrangement whereby a woman (the surrogate mother) volunteers to gestate a pregnancy for another person/s, who will become the child’s parent(s) after birth. In South Africa, this arrangement must be supported by a legal agreement which we call the surrogate motherhood agreement and thereafter, this must be made an order by the High Court of South Africa.

Surrogacy Has a Long History

As far back as biblical times, fertile women agreed to conceive and bear children for childless women and then hand over the children at birth. In South Africa, the process has evolved and developed to such an extent since the 1980s that formal legal and medical processes are now in place to safeguard both commissioning parents and surrogate mothers.

In 1987 Pat Anthony was the first “official” surrogate mother in South Africa. She was a surrogate mom for her daughter and successfully delivered triplets.

The South African Laws Governing Surrogacy

The South African legislation governing surrogacy is contained in Chapter 19 of the Children’s Act no 38 of 2005. Section 295 of this Act sets out the legal criteria that must be in place before the High Court can consider approving a surrogate motherhood agreement.

Chapter 19 must be read in conjunction with the Choice on Termination of Pregnancy Act, No. 92 of 1996. This Act sets out the circumstances under which a pregnant woman may terminate her pregnancy, and this includes a the scenario where a surrogate mother is pregnant.

When Is a Surrogate a Possibility?

Surrogacy is available to a woman who is unable to give birth to a child due to a serious medical condition and/or due to ongoing infertility. The unresolved infertility must be diagnosed or confirmed by a fertility expert. A serious chronic medical condition must be confirmed by the attending medical specialist in circumstances where a pregnancy poses a danger to the mother and/or the baby. The condition in terms of our law is defined as “permanent and irreversible”. Surrogacy is also available to a man whether he is single or in a same sex relationship. In addition, at least one of the intended parents must be genetically related to the child.

Finding a Surrogate

The Children’s Act prohibits any person to charge a commission for finding a surrogate and introducing a surrogate mother to commission parent/s for a fee.

The usual practice is for South Africans to find surrogate mothers within their own families or social networks, or through fertility clinics who are approached by women who volunteer to be surrogates.

The Process

The process of surrogacy can take a few months, and many technicalities have to be addressed. The first and important step is to find a surrogate mother.

Once a suitable surrogate has been found, a surrogate motherhood agreement must be drawn up between the surrogate mother and the commissioning parents. These agreements normally include clauses regarding:

  • The parties’ obligations to one another
  • Declaration of parenthood
  • Provisions regarding pregnancy care
  • Obligations of the commissioning parents to cover all medical costs and expenses directly relating to surrogacy process.

The High Court also requires psychological and medical assessments as well criminal background checks.

What Are the Financial Implications of Surrogacy?

The commissioning parents are responsible for all legal fees related to the drafting of the surrogate motherhood agreement and application to the High Court. They are also responsible for any fees related to the

  • medical, psychological and social work assessments of the surrogate;
  • medical tests to determine whether the commissioning parents are not able to conceive and give birth to a child;
  • hospitalisation and medical costs associated with pregnancy, IVF treatment and childbirth;
  • medical aid/hospital plan for the surrogate mother;
  • a life policy for the surrogate; and
  • the IVF treatments.

The IVF treatments can cost between R65,000 and R120,000 per treatment.

According to South African legislation you can only compensate the surrogate mother for medical expenses, loss of income during the pregnancy and for costs directly related to the surrogate pregnancy such as travelling. You cannot pay a surrogate mother. Surrogacy is only permitted on an altruistic basis in South Africa.

Your Next Step

It is recommended that commissioning parents do not attempt to go through the process alone. There are excellent legal companies, like Robynne Friedman Attorneys, who are specialists in surrogacy and fertility law who can assist you. They can provide you with a full service to avoid costly mistakes. Contact them now!

Robynne Friedman Attorneys is dedicated to assisting single, gay and heterosexual intended parents in the area of surrogacy and fertility law. Robynne Friedman Attorneys works throughout the Republic of South Africa and has successfully completed several hundred surrogacy High Court applications.