Surrogacy for Single Parents

Is Surrogacy for Single Parents Allowed in South Africa?

Surrogacy for single parents is allowed in South Africa for altruistic reasons only. This means that the surrogate may not receive any compensation not directly related to the expenses associated with the surrogacy.

The single parent, who commissions the surrogacy, is responsible for payment of the medical expenses, legal fees and the costs related to assessments such as medical, psychological, and social-economic assessments. The court must be satisfied that the surrogate has the written consent of her partner, is not doing it for commercial gain, is emotionally and mentally stable, physically able to carry and give birth to a healthy living child, and resides in South Africa at the time of signing the surrogate agreement. She must be of child bearing age, must have at least one living child of her own, and must have given birth to a living child before.

It is important to understand that one of the legal requirements for surrogacy in South Africa is that the gametes of at least one of the commissioning parents must be used in the IVF process. If the commissioning parent is single, then her or his gametes must be used. If that person is infertile, they will need to adopt or, as alternative, partner with a fertile person should they wish to follow the route of surrogacy since at least one of the commissioning parent’s must be related to the child.

The above legal requirement has been confirmed in a recent case where the applicant for surrogacy is a single infertile female.  In the case of AB and Surrogacy Advisory Group versus the Minister of Social Development (Centre for Child Law as Amicus Curiae) CCT 155/15 in the Constitutional Court of South Africa, the Court ruled on November 29, 2016 that a genetic link between one of the commissioning parents and the child born from the surrogacy is a legal requirement and constitutionally valid.

The court also ruled that the genetic link requirement is not unjustifiably limiting the rights of the persons unable to provide their own gametes for the surrogacy. The court’s ruling came after the Applicant challenged the Children’s Act No. 38 of 2005 Section 294 requirement of a genetic link between at least one commissioning parent and the child born from the surrogacy.

As such, surrogacy for single parents is legal as long as the requirements of the Children’s Act are met. Should you wish to follow the route of surrogacy to get a biologically linked child of your own, we recommend speaking to Adele van der Walt regarding requirements and assistance in setting up a surrogacy agreement and applying to the High Court for confirmation of the agreement.

Disclaimer:
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.

Sources:
https://africlaw.com/2017/02/15/south-africa-genetic-link-requirement-for-surrogacy-is-constitutional/
http://www.judiciary.org.za/doc/Court-Case-29-November-2016_Media-Summary-CCT-155-15.pdf