Surrogacy offers hope to many individuals and couples who are unable to conceive naturally. In South Africa, the legal framework around surrogacy is well-defined to ensure that the rights and responsibilities of all parties — the commissioning parents, the surrogate, and the child — are protected.
If you’re considering surrogacy as your pathway to parenthood, it’s crucial to understand the legal requirements and safeguards involved.
Which Legislation Regulates Surrogacy?
Surrogacy in South Africa is governed by the Children’s Act 38 of 2005, specifically Chapter 19 (Sections 292–303). This legislation outlines the legal process and requirements for a valid surrogate motherhood agreement.
Key Legal Requirements for Surrogacy
Here are the essential legal aspects prospective parents and surrogate mothers need to consider:
1. High Court Confirmation Is Mandatory
A surrogacy agreement must be confirmed by the High Court before any artificial insemination takes place. The court must be satisfied that:
- The agreement complies with legislation;
- All parties have provided informed consent;
- The arrangement serves the best interests of the child.
Without this confirmation, the agreement is not legally valid.
2. Who Qualifies as a Commissioning Parent?
At least one of the commissioning parents must:
- Contribute a gamete (egg or sperm); and
- Be a permanent resident of South Africa.
This requirement was confirmed in the AB v Minister of Social Development case, where the Constitutional Court upheld the necessity of a genetic link.
3. Surrogate Mother Eligibility
The surrogate mother must:
- Have given birth to at least one child of her own;
- Be medically and psychologically fit to carry the pregnancy;
- Not receive compensation beyond reasonable medical, legal, and related expenses.
Commercial surrogacy is strictly prohibited under South African law.
4. Legal Parentage and Rights
Once the child is born, the commissioning parent(s) are regarded as the legal parents from the moment of birth. The surrogate mother and her partner, if any, have no parental rights or obligations.
5. Right to Terminate the Agreement
In terms of Section 298 of the Children’s Act, a surrogate mother who is also a genetic parent (i.e., she contributed her own egg) may terminate the surrogacy agreement within 60 days after the birth. This is done by filing written notice with the High Court that confirmed the agreement.
The court will only grant the termination if satisfied that:
- The surrogate has voluntarily made the decision;
- She fully understands the consequences;
- It is in the best interests of the child.
If termination is confirmed, the surrogate mother becomes the legal parent, and the commissioning parents lose parental rights — unless they later adopt the child. The surrogate incurs no legal liability for exercising this right, apart from potentially refunding reasonable expenses paid under the agreement.
Commercial Surrogacy Is Illegal
Only altruistic surrogacy is allowed in South Africa. The surrogate may only be reimbursed for out-of-pocket expenses, such as medical, travel, and legal costs. Any payment beyond that is a criminal offence.
Why Legal Guidance Is Essential
Surrogacy is a complex and sensitive legal process. Expert legal assistance is essential to:
- Draft and review the surrogacy agreement;
- Prepare and lodge the High Court application;
- Liaise with medical and psychological experts;
- Ensure compliance with the Children’s Act;
- Protect the rights of all parties involved.
Need Help with the Surrogacy Process?
At A de Bruyn Attorneys, we offer expert legal guidance for commissioning parents and surrogate mothers across South Africa. Whether you’re exploring your options or ready to proceed with a High Court application, our team will walk the journey with you — with care, confidentiality, and legal precision.
Contact us today for a consultation and let us help you navigate the path to parenthood with confidence.
