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How Surrogacy Laws Differ in Various Countries

It is imperative to research the surrogacy laws of the particular country where you reside and wish to make use of surrogacy as an option to get a child of your own.  A brief introduction to the surrogacy laws in South Africa should give you insight as to why you have to make use of a medical law attorney specialising in surrogacy to assist with the entire legal side of the process.

In South Africa, the Children’s Act of 2005 (effective since 2010) governs surrogacy agreements in the country. You cannot have fertilization take place before the agreement between the commissioning parents and the surrogate has been validated by a High Court of the country. Should this happen, the agreement is invalidated and the surrogate becomes the legal parent of the child.

Single and gay couples can commission surrogacy, provided they meet the requirements of being resident in the country at the time of signing the agreement and also meet the psychological and medical requirements.

It is illegal to commercially benefit from surrogacy in the country. This simply means that the surrogate cannot accept money from the commissioning for any expenses not directly related to the surrogacy. Under South African surrogacy laws surrogacy is thus allowed if done for altruistic reasons.

The surrogate must meet the requirements of being physically in a healthy condition, able to carry the baby full-term and to give birth to the child. She must have at least one living child of her own, requires the consent of her partner, and must have given birth to a living child before. She must be resident in South Africa and meet the psychological requirements.

Countries where surrogacy for commercial or altruistic reasons is illegal include (at time of writing in 2014), but are not limited to:

  • Finland
  • Quebec in Canada
  • France
  • Iceland
  • Italy
  • Pakistan
  • Saudi Arabia
  • Serbia
  • Switzerland

Countries allowing for altruistic surrogacy:

  • Australia
  • South Africa
  • Canada
  • Hungary
  • Israel
  • Belgium
  • Netherlands
  • United Kingdom

Countries that allow for altruistic and commercial surrogacy:

  • Russia
  • USA (states have different laws)
  • Ukraine
  • Georgia
  • India
  • New Zealand

Countries with no clear laws on surrogacy include:

  • Ireland
  • Sweden

The issue of commercial surrogacy agreements is rather controversial. Before any person considers going to a country such as India or Russia for surrogacy, it is recommended to research not only the surrogacy laws of South Africa and the relevant country, but also adoption laws. In countries such as India, many young women are exploited for the purpose of surrogacy. India provides low cost surrogacy options and according the country’s laws, the child gets the citizenship of the parents. Note that the health and wellbeing of the young females are not considered.

What should be your first step?

If you are an infertile couple and have medical proof of your infertility or the inability to carry the baby full-term, have considered adoption, and believe you can meet the legal requirements, contact Adele van der Walt for legal guidance regarding the surrogacy laws of South Africa. The next step is to find a suitable surrogate in the country who is willing to go through the process for altruistic reasons. There are agencies in the country that operate ethically and that will be able to assist.