Parenthood via Surrogacy in South Africa

 

 

Introduction

 

Surrogacy remains less common than in vitro fertilisation or artificial insemination, but is a valuable pathway for many couples or individuals facing infertility. In South Africa, surrogacy is governed by a detailed legal framework under Chapter 19 of the Children’s Act 38 of 2005, specifically Sections 292-303. This framework ensures that the legal rights and responsibilities of all parties, and, most crucially, the child, are protected.

 

Legal Foundation: The Children’s Act

 

For a surrogacy arrangement to be legally valid, it must begin with a written agreement signed by the commissioning parents, the surrogate, and, where applicable, her partner. These agreements must be concluded in South Africa, with at least one commissioning parent and the surrogate being domiciled in the country, though courts may waive the surrogate’s domicile requirement in exceptional cases.

 

The Court must confirm the agreement before any fertilisation takes place. Section 295 requires evidence that the commissioning parents are permanently unable to give birth, that the surrogate is medically and psychologically suitable, and that the arrangement is altruistic, with no more than reasonable compensation for actual expenses.

 

Importantly, Section 296 mandates that artificial fertilisation may only occur after the agreement is confirmed and must take place within 18 months of confirmation.

 

Genetic Link Requirement

 

South African law requires a genetic link between the child and at least one commissioning parent. Section 294 mandates that gametes from either both, or at minimum one, commissioning parent be used. This requirement was challenged in AB and Another v Minister of Social Development (CCT155/15) [2016] ZACC 43  but was upheld by the Constitutional Court, emphasising the principle of the child’s best interest.

 

 

Altruistic Surrogacy Only

 

Commercial surrogacy, where the surrogate is paid a fee, is expressly prohibited. Under Section 301, the surrogate may only be reimbursed for out-of-pocket expenses such as medical, travel, legal costs, and loss of earnings. Any payment beyond these allowances is unlawful.

 

Legal Parentage: Gestational vs. Traditional Surrogacy

 

Gestational surrogacy (where the surrogate carries an embryo with no genetic link) is the legally preferred route. Upon confirmation and birth, the commissioning parents are immediately recognised as the child’s parents, and the surrogate and her partner have no parental rights.

In traditional surrogacy (where the surrogate contributes her egg), the surrogate retains the right to terminate the agreement within 60 days after birth by filing written notice with the Court, and to claim parental rights under Sections 298–299, making it a more uncertain and legally complex route .

Court Oversight and Medical Evidence

 

Before confirming a surrogacy agreement, the High Court rigorously examines the parties’ suitability. This includes medical reports and psychological evaluations for the surrogate, a report from the Family Advocate, affidavits, and a financial statement. Courts scrutinise whether the arrangement is genuinely in the best interests of the future child.

A recent illustration of this rigorous medical oversight is the Pretoria High Court’s judgment in Ex Parte JVDM and Others (104620/2024) [2025] ZAGPPHC 187, where the court approved a surrogate pregnancy for the sixth time, even after five previous Caesarean sections, because medical experts confirmed no undue risk. The court emphasised that the Children’s Act imposes no cap on surrogacy arrangements or Caesarean frequencies, and that courts cannot legislate such limits.  

 

After the Baby Is Born

 

Once the agreement is confirmed and the child is born, the commissioning parents are legally recognised as the child’s parents from birth, and their names are placed on the birth certificate . Since gestational surrogacy is immune to post-birth terminations by the surrogate, it ensures immediate legal clarity. In traditional surrogacy, however, the 60-day revocation window carries risk for the commissioning parents .

 

 

Why Legal Guidance Is Essential

 

 Surrogacy is legally and procedurally demanding, involving constitutionality issues, court protocols, medical steps, and nuanced drafting. An experienced lawyer is essential to ensure:

 

1. A compliant and protective surrogacy agreement.
2. A thorough application to the High Court.
3. Accurate liaison with medical and psychological professionals.
4. Judicial protection of key interests.
5. Proper registration of the child’s birth.

 

Conclusion

 

South Africa’s surrogacy law reflects a careful balance, anchored in altruism, genetic linkage, medical scrutiny, and judicial safeguarding of the child’s welfare. While it offers a clear route to commissioning parenthood, the path is legally intricate and demands expert support.

If you’re considering surrogacy, especially gestational, it’s vital to consult a specialist early in the process. With informed guidance, this profound journey to parenthood can proceed with certainty, care, and legal integrity.

 

For further assistance, consult an attorney at SchoemanLaw.