Becoming a Surrogate Mother

Misconceptions About Surrogacy and Becoming a Surrogate Mother in South Africa

Many misconceptions exist regarding surrogacy in South Africa, mostly because people base their information on what they have seen in films or have read about becoming a surrogate mother in overseas countries. The “womb for hire” images associated with becoming a surrogate mother, where couples make use of foreign girls to carry their babies, certainly do not help. The truth is that surrogacy in South Africa is strictly regulated by the Children’s Act No. 38 of 2005.

The Act prohibits commercial gain by the surrogate mother when she is carrying the commissioning parents’ baby to birth. As such, surrogacy is only allowed for altruistic reasons in South Africa. One may argue that the commissioning parents can always pay someone for becoming a surrogate with excessive compensation for maternity clothes, loss of earnings, travel costs and more in an attempt to hide the fact that they are compensating the surrogate to carry their child.

Though it is possible, one has to remember that according to the Children’s Act, no surrogacy is legal if there is not an agreement in place, which the High Court of the country has confirmed. Indeed, the agreement must meet various requirements and the IVF process may not commence before confirmation of the agreement.

The application for confirmation is brought to the High Court where all factors and terms of the agreement are reviewed. The Court also considers facts and supportive documents submitted to show that the surrogate is of childbearing age, in good health, able to carry a child to birth, and mentally able to understand the agreement and consequences thereof. The High Court furthermore considers the financial position of the surrogate to determine whether she is indeed offering to become a surrogate mother for altruistic reasons.

If a surrogate is, for instance, a single mother with two children, but lives in a one-bedroom apartment and has substantial debt, it would be difficult to argue that she is not entering the agreement for financial gain. To this end, the surrogate undergoes social worker assessments to determine whether she has family support and is financially in a position to take care of her children and living costs. In addition, she must have at least one living child of her own and must have the written consent of her partner if she is to become a surrogate mother. The agreement must stipulate clearly which costs are covered.

Another misconception of surrogacy in South Africa is that the commissioning couple can choose surrogacy over adoption because they want a genetic link with the child. Though partially true, the law stipulates that the commissioning couple must be infertile and the condition must be irreversible. They must have medical proof of their infertility and inability to carry a child to birth.

Contact Adele van der Walt Incorporated for more information on becoming a surrogate, the surrogacy agreement related to such, and the application process to have the agreement confirmed by the High Court of South Africa.

Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant to the date of publishing – March 2019.