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Legal Aspects of Fertility

Get Help with the Legal Aspects of Fertility

The legal aspects of fertility are nuanced and specialised, and there is much to consider when embarking on a surrogacy journey. Surrogacy is the medical process whereby the surrogate carries and delivers another person’s baby. The person using the surrogate services will then become the child’s legal parent after birth. South African law stipulates that surrogates cannot be paid an income for the service, and, as such, it should be done for altruistic reasons.

Families or individuals usually seek the support of a surrogate when they are unable to give birth themselves due to medical reasons. A fertility expert must diagnose the condition before surrogacy becomes a legal option.

Legal Aspects of Surrogacy Motherhood

The legislative aspects of fertility law in South Africa have the following requirements:

  • The surrogate must be medically able to carry the pregnancy to term.
  • They must have a child of their own.
  • They must fully comprehend all stipulations of the agreement and all parental rights and obligations of all parties.
  • They must have medical documents of a pregnancy that was carried to full term.
  • They cannot engage in the process for financial reasons, nor should they be forced for religious ones.

Nonetheless, Chapter 19 of South Africa’s Children’s Act (No. 38 of 2005) does stipulate that those utilising a surrogate will compensate for some aspects of the process. Those using a surrogate can legally pay for several aspects, including:

  • Medical expenses, like IVF and hospital stays
  • Any loss of income incurred during the pregnancy
  • Medical insurance / any other type of insurance that might be needed during the pregnancy

Both parties must note, however, that direct compensation for surrogacy is illegal, and failure to comply with this obligation carries hefty fines and imprisonment. Anyone entering a surrogacy agreement should consult a medical law professional and draw up a sound and law-abiding agreement that considers all legal aspects of fertility.

Reach Out to the Medical Law Experts at Adele van der Walt Incorporated

Adele van der Walt has been practising in the realm of fertility, surrogacy, and medical law for 23 years and is an authority on the legal complexities within the South African context. For more information on the legal aspects of fertility, send us a message. We will happily get in touch with you and advise on the next steps in your fertility journey and surrogacy agreement. These legal agreements are significantly important for families, and with us by your side, you can navigate all legislative processes with confidence and ease.


* This article is for information purposes only and does not constitute legal advice. Call our office for legal advice rather than relying on the information herein to make any decisions. The information is relevant on the date of publishing – September 2022.