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Surrogacy for Gay Couples

Is Surrogacy for Gay Couples Possible in South Africa?

According to the Children’s Act No. 38 of 2005, same-sex couples who are unable to give birth to a living child and medically unable to conceive and carry a child of their own, qualify for surrogacy. Surrogacy for gay couples is thus possible, provided that the gametes of at least one of the commissioning parents are used in the IVF process.

What does it mean?

In the instance of a male gay couple, the sperm for the IVF process must be derived from one of the partners in the marriage or relationship. It is not possible to commission surrogacy where there is no genetic link with the child from the commissioning parents’ side. Apart from the law allowing surrogacy for gay couples, it allows such also for single parents, with the same provision that there must be a genetic link with the child that will be born from the surrogacy.

Where to find a surrogate for gay couples

The law prohibits advertising the services of a surrogate or the need for a surrogate in newspapers and media since surrogacy is not allowed for commercial benefit. This makes it difficult for gay couples to find a suitable surrogate, but not impossible.

Various reputable fertility clinics in South Africa can assist regarding surrogacy for gay couples. Egg and sperm donors provide gametes. As long as one of the commissioning parents provides gametes for the IVF process, the gay couple will be able apply for surrogacy.

Why apply?

The law in South Africa is strict regarding surrogacy. A surrogacy agreement must be drafted and an application submitted to the High Court of South Africa to have the agreement confirmed. Various requirements must be met before the High Court will confirm the agreement. The IVF or embryo transfer process may not commence before the agreement has been confirmed.


The contract must be valid and signed by all parties involved. It is must meet all requirements for a valid contract and it is thus recommended to make use of a surrogacy attorney to draft or review the contract. The surrogate and at least one of the commissioning parents must reside in South Africa at the time of signing the agreement.

The surrogate must be of childbearing age, healthy and able to carry a child and give birth to the child. She must have at least one living child of her own and must have given birth to a living child before. She must have sufficient family and financial support. She must be emotionally and mentally stable.

The commissioning parents must be financially able to care for the child. They must be mentally and emotionally stable. The Court must be satisfied that the couple will be able to raise and care for the child. The Court must also be satisfied that the couple is medically unable to conceive, carry and give birth to a living child of their own.

Surrogacy for gay couples is thus possible, provided all the requirements of the law have been met. Speak to Adele van der Walt Incorporated about the legal aspects regarding surrogacy for gay couples and single parents in South Africa.

Information in this article is not intended as legal advice and is only for informational purposes. Please seek legal guidance from Adele van der Walt before relying on this information to make any legal decisions.