For many people, building a family is not always a straightforward journey. Medical conditions, infertility, and other circumstances can make carrying a pregnancy impossible, leading hopeful parents to explore alternative paths to parenthood. One of these options is surrogacy.
Surrogacy is legal in South Africa, but it is also one of the country’s most carefully regulated areas of family law. The legal framework is primarily contained in Chapter 19 (Sections 292–303) of the Children’s Act 38 of 2005, which establishes strict safeguards to protect the best interests of the child, the surrogate mother, and the commissioning parent or parents.
Unlike some countries where commercial surrogacy is permitted, South Africa only allows altruistic surrogacy, meaning a surrogate mother cannot profit financially from carrying a child for another person or couple.
The Legal Requirements for Surrogacy
1. There Must Be a Valid Medical Reason
Surrogacy is not available simply because someone prefers not to experience pregnancy.
Before approving a surrogate motherhood agreement, the High Court must be satisfied, based on medical evidence, that the commissioning parent is permanently and irreversibly unable to give birth. This medical requirement is one of the most important safeguards in South African law and must be supported by appropriate specialist reports.
2. High Court Approval Must Come First
A surrogate motherhood agreement has no legal effect unless it has been confirmed by the High Court before any artificial fertilisation or embryo transfer takes place.
If fertilisation occurs before court approval, the agreement is invalid and unenforceable, and the ordinary legal rules relating to parentage will apply. This can create significant legal uncertainty for everyone involved, making legal advice essential before any medical procedures begin.
3. A Genetic Link Is Generally Required
South African law generally requires the child to be genetically related to at least one of the commissioning parents.
This means that at least one commissioning parent must contribute an egg or sperm to the conception. As a result, surrogacy arrangements using both a donor egg and donor sperm, with no genetic connection to either commissioning parent, are generally not permitted under the current legal framework.
4. Commercial Surrogacy Is Prohibited
Surrogacy in South Africa must remain an act of generosity rather than a commercial transaction.
A surrogate mother may not receive payment, wages or financial reward for carrying a child.
However, the commissioning parents are legally permitted—and often expected—to pay reasonable expenses directly related to the pregnancy, including:
- Medical treatment and hospital expenses
- Fertility treatment costs
- Health insurance where applicable
- Legal fees for preparing the agreement and obtaining High Court approval
- Reasonable travel expenses
- Compensation for actual loss of income resulting from the pregnancy or birth
These payments are intended to reimburse genuine expenses rather than provide financial gain.
5. Domicile Requirements Must Be Met
The Children’s Act requires that, when the surrogate motherhood agreement is signed:
- at least one commissioning parent (or the single commissioning parent) must be domiciled in South Africa; and
- the surrogate mother, together with her spouse or permanent life partner (where applicable), must also be domiciled in South Africa.
These jurisdictional requirements allow the South African High Court to supervise and confirm the agreement.
Safeguards Protecting the Surrogate Mother
The High Court carefully considers whether the proposed arrangement is lawful, ethical and in the best interests of everyone involved.
Although the Children’s Act does not prescribe every document that must accompany an application, courts routinely require comprehensive evidence demonstrating that the surrogate understands the legal, emotional and medical implications of the arrangement. In practice, applications commonly include medical reports, psychological assessments and affidavits from all parties.
Courts also generally expect a surrogate mother to have previously experienced a successful pregnancy and to have a living child of her own. While this expectation largely arises from judicial practice rather than an express provision of the Act, it has become a well-established safeguard in South African surrogacy proceedings.
Where the surrogate mother or commissioning parents are married or in a permanent life partnership, the written consent of their spouse or partner is generally required as part of the legal process.
Legal Parenthood After Birth
Once the High Court has confirmed a valid surrogate motherhood agreement and the statutory requirements have been met, the legal position is clear.
If the surrogate mother is not genetically related to the child, the child is regarded as the legal child of the commissioning parent or parents from birth. The child’s birth is registered accordingly, and the commissioning parents acquire full parental responsibilities and rights.
Where the Surrogate Is Genetically Related to the Child
In some cases, the surrogate mother’s own egg is used, making her genetically related to the child.
The Children’s Act treats these situations differently. Where the surrogate is genetically related to the child, she has a statutory right to terminate the surrogate motherhood agreement within 60 days after the child’s birth. If she exercises this right, different legal consequences follow, making these arrangements considerably more complex than gestational surrogacy.
Practical Checklist for Prospective Parents
If you are considering surrogacy in South Africa, you should:
- Obtain specialist medical evidence confirming that surrogacy is medically justified.
- Consult an attorney experienced in reproductive and family law.
- Ensure the proposed surrogate meets the legal and practical requirements expected by the High Court.
- Undergo the necessary medical, legal and psychological assessments.
- Prepare a comprehensive surrogate motherhood agreement.
- Obtain High Court confirmation before any fertility treatment or embryo transfer begins.
Final Thoughts
Surrogacy offers many South Africans the opportunity to experience parenthood when pregnancy is no longer medically possible. However, it is not simply a private arrangement between adults. Every surrogacy agreement must satisfy strict legal requirements designed to protect the child, the surrogate mother and the commissioning parents.
Obtaining experienced legal advice at the outset is essential. By following the procedures laid down in the Children’s Act and securing High Court approval before treatment begins, intended parents can move forward with confidence, knowing that their journey to parenthood rests on a sound legal foundation.
Thinking About Surrogacy? We Can Help!
If you’re considering surrogacy or need help with a surrogacy agreement, contact us. Our team can guide you through the legal process and ensure a smooth journey towards building your family.
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