The legal aspects of surrogacy in South Africa

Surrogacy in South Africa is legal and it is performed for altruistic reasons. It is illegal for the surrogate mother to charge for carrying a baby for the commissioning parent/s except for the monthly expenses stipulated in Chapter 19 of the South African Children’s Act from 2005, amended 2010.

Who can become a surrogate mother?

• The surrogate mother must have at least one natural child living with her. She can be married, in a relationship or single. Her partner / husband should also agree to her becoming a surrogate.
• The surrogate mother must be a citizen of South Africa and live in the country
• It is preferable that the surrogate mother is between 26 and 40 years old. However, a woman can become a surrogate even by the age of 50 years if she is found to be medically fit to carry a child and does not suffer from any chronic medical conditions that may be aggravated by pregnancy, such as hypertension, cardiovascular disease, or diabetes.
• One or both commissioning parents must also permanently reside in South Africa (must have domicilium).

According to the South African Children’s Act 38 of 2005 the surrogate motherhood agreement contains some of the following information:

• At least one of the commissioning parents has to be the biological parent to the child/ren born to a surrogate mother. The Law in South Africa still prohibits the simultaneous use of donor eggs and sperm by the commissioning parents when using the assistance of a surrogate mother.
• A written surrogacy agreement needs to be drawn up and signed between the commissioning parents and the surrogate mother and her husband / partner, accompanied by the legally required supporting documents. This agreement is later on made an order of the High Court in the area where the commissioning parents reside.
• Any child/ren born to a surrogate mother in accordance with the agreement is for all purposes the child/ren of the commissioning parent or parents from the moment the child is born.
• The surrogate mother or her husband, partner or relatives have no rights of parenthood or care of the child.
• The surrogate mother is obliged to hand the child/ren over to the commissioning parent or parents as soon as is reasonably possible after the birth.
• The surrogate mother or her husband, partner or relatives have no right to any contact with the child unless provided for in the agreement between the two parties.
• Subject to sections 292 and 293, the surrogate motherhood agreement may not be terminated after the artificial fertilisation of the surrogate mother has taken place.
• The child will have no claim for maintenance or of succession against the surrogate mother, her husband or partner or any of their relatives.
• Any surrogate motherhood agreement that does not comply with the provisions of this Act is invalid and any child born as a result of any action taken in execution of such an arrangement is for all purposes deemed to be the child/ren of the woman that gave birth to that child.

You can obtain the full text of CHAPTER 19, SURROGATE MOTHERHOOD (ss 292-303) from the South African Children’s Act 38 of 2005 here.