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Surrogacy in South Africa

Aspects to Consider Before You Look for a Surrogate Mother in South Africa

Understanding the legal requirements related to surrogacy in South Africa is essential to avoid costly pitfalls and even ending up with no right to contact with the child. We strongly recommend first approaching a medical law or surrogacy attorney before you start looking for a surrogate mother. Some of the questions you may have are briefly answered below to help you get started.

When can I make use of a surrogate mother in South Africa?

If you are a couple or single person unable to give birth to a child of your own, and have supportive evidence to the fact, then surrogacy is an option. Your uterus may have been harmed during chemotherapy, which has rendered you in a position of not being able to carry a child to birth. You may have a medical history that shows that a pregnancy will seriously affect your health or the health of the child. You may be a male couple and thus require a female to carry the child to birth.

If I am single, can I still commission surrogacy?

Yes, provided that your gametes will be used in the fertilisation process. This means there must be a genetic link between you and the child carried by the surrogate. You must reside in South Africa at the time of signing the surrogacy agreement and all the legal requirements must be met.

Can I use the sperm or eggs of my deceased partner for fertilisation?

The National Health Act determines the position. The legal position will be determined by the facts.

Who provides the eggs if we are a male couple?

The fertility clinics have donor options, making it possible for using donor eggs and a gamete of your partner or you.

What if the child in future wants to meet the donor of the eggs or sperm?

In South Africa, the donor’s identity is protected and the child will not have any right to seek and locate the donor. The child also will not have any right to seek maintenance or any financial compensation from the donor in future. The unknown donor doesn’t have any parental or contact rights; the legal position is different where a KNOWN sperm / egg donor is used.

Where to find a surrogate?

You must use a surrogate that is domicile in the country at the time of signing the agreement and who is willing to go through the process for altruistic reasons. You cannot compensate the surrogate for her services other than carrying the costs directly related to the surrogacy. As such, placing a newspaper ad is simply not worth it. We recommend making use of a fertility clinic or approaching a surrogacy support programme where screening processes are in place.

Which costs must I keep in mind?

Surrogacy is a rather expensive endeavour. Every miscarriage by the surrogate means a financial loss apart from the emotional strain it places on you and the surrogate. Costs include the attorney fees, court application, fertility procedures, fertilisation, hospitalisation of the surrogate, medical assessments, psychological assessments, social worker assessments, doctor and medical treatment costs, compensation for loss of income during the pregnancy for the surrogate if she has to take unpaid leave, and travel costs to and from the medical rooms.

What next?

Gain legal advice regarding the procedures to follow related to commissioning surrogacy in South Africa.