Understanding Surrogacy in South Africa
In South Africa, surrogacy represents both a deeply personal path to parenthood and a legally intricate process. It is not simply a matter of agreement between two parties or a medical procedure — it is governed by a legal framework that is strict, specific, and designed to protect all involved: the surrogate, the commissioning parents, and most importantly, the child.
What the Law Says
Under the Children’s Act 38 of 2005, only altruistic surrogacy is permitted. This means that while medical and related expenses can be reimbursed, no profit can be made from the agreement. Commercial surrogacy remains illegal in South Africa, and any attempt to pay a surrogate beyond what the law allows can invalidate the entire process.
Legal Prerequisites for Surrogacy
The journey begins not at a clinic, but in court. Before any medical procedures can take place, a High Court must confirm the surrogacy agreement. This court application must demonstrate, among other things, that the commissioning parent or parents are unable to carry a pregnancy themselves for medical or biological reasons. The surrogate must also meet specific legal criteria, including having at least one living child of her own.
Court Involvement and Psychological Screening
This is not a simple rubber-stamp process. Courts carefully assess whether all parties understand their rights and responsibilities, whether the arrangement is truly altruistic, and whether the best interests of the future child are being safeguarded. Psychological evaluations are typically required, as are legal consultations and formalised contracts outlining everything from medical plans to ethical boundaries.
Surrogacy in Numbers
Over the past decade, the number of court-approved surrogacy agreements has gradually increased. Fertility experts estimate that over 400 applications have been confirmed by the courts since 2010. The financial costs, even for altruistic arrangements, are significant: legal, psychological, and medical services can range from R200,000 to R500,000. But for many, the cost is justified by the outcome — the chance to build a family.
Common Misconceptions
A few common misconceptions persist:
- Some believe the surrogate retains parental rights — but once the High Court confirms the agreement, the commissioning parents are recognised as the legal parents from birth.
- Others think the legal paperwork can wait until after the pregnancy, which is not only incorrect but could also lead to major legal issues.
Surrogacy in South Africa offers hope to families, but it must be approached with a clear understanding of the law. A failure to comply with the legal process can place both the commissioning parents and the child at risk. For anyone considering this path, expert legal guidance is not just helpful — it’s essential.
