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How Does Surrogacy Work in South Africa and What About Costs?

You may have read about surrogacy arrangements overseas or may have seen such arrangements on television in countries such as the USA, but how does surrogacy work in South Africa?

Altruistic reasons

You cannot pay for someone to carry your child in South Africa. You can also not advertise in the media that you will do so on behalf of a couple in return for monetary compensation. The only type of surrogacy arrangement allowed in South Africa is one where there is no commercial gain for the surrogate.

What about the costs?

Of course, there are costs involved with surrogacy arrangements. The surrogate cannot be expected to foot the bill for the costs. All costs related to the surrogacy are for the commissioning couple’s account. Such expenses include all the medical tests, the legal costs related to the setting up of the agreement and the court application, medical treatments, psychological assessments, social worker assessments, transport to and from the medical rooms or hospital, hospitalisation, and IVF treatments.

The surrogate can be compensated for expenses directly related to the surrogacy, such as transport to and from doctors, loss of income during the pregnancy and hospitalisation, maternity wear, medication, and pre-natal classes, etc.

Where to find a surrogate?

In South Africa, the best place to start is at a fertility clinic if you don’t know about a friend or relative willing to go through the process on your behalf. The fertility clinic handles the pre-screening process and assists with all the tests.

It is important to note that the IVF process may not commence before a surrogacy agreement is in place. Signing such an agreement doesn’t make it a valid agreement. Only once it has been confirmed by a High Court of the country, is the agreement valid and can you commence with the IVF treatments.

What about the surrogate’s right to keep the baby?

The surrogate does not have any parental rights. This is confirmed in the Court Order. The commissioning couple becomes the rightful parents of the child when the child is born, and the surrogate is expected to hand over the child as soon as reasonably possible. She does not have any contact rights unless so agreed in the surrogacy contract.

What if a donor egg or sperm has been used – does the child have the right to contact the donor?

No, the donor’s information is confidential and the child does not have the right to contact this person.

What happens if the surrogate wants to terminate the pregnancy?

She has the right to do so if discussed with the commissioning couple. If the termination is for medical reasons, then she is not liable for the costs of the surrogacy. However, if not, she must pay the expenses up to the date of termination of the pregnancy.
The surrogate will be clinically examined by a psychologist; this report has to form part of the Court Application. Possible risk of termination and depression needs to be assessed.

What should be the first step if we want to commission surrogacy or if I want to become a surrogate?

Contact our attorney team to help you determine whether you are eligible and to explain how surrogacy works in South Africa. We will also assist with the setting up and reviewing of the surrogacy agreement, handle the application to court, and assist where relevant with agreement disputes.