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Child Care and Surrogacy in the Children’s Act of 2005

According to the Children’s Act, apart from the parents or legal guardians, only hospitals, maternity homes, children’s homes and places of safety may take children in and take care of them for more than 14 days. If a person wishes to do so and doesn’t operate any of the above places or falls into the category of parent or legal guardian, the person must first obtain legal consent from the district Child Commissioner.

Children’s Court

Should a child be removed from their parents, the child must be brought before the Children’s Court at the earliest possible time to determine whether the child is in need of care. The Court will rule that the latter is the case when the child doesn’t have legal guardians or parents that can be traced or if the child is without any visual means of support. An abandoned child may also fit the profile, but a child, even though well-cared for, can be removed from the parents should the child’s behaviour be uncontrollable.

The Court may furthermore rule in favour of removal if the living conditions of the child warrant such. Instances where the child is subjected to seduction, sexual exploitation or any situation where the child may suffer mental, social well-being or physical harm may be sufficient reason for ruling that a child needs care.


According to the Children’s Act 38 of 2005, surrogacy may not lead to commercial gain by the surrogate. In South Africa, people become surrogates for altruistic reasons. Before a person considers becoming a surrogate, it’s important to understand that the minimum physical, health, and emotional requirements must be met. The Act stipulates that only if a person has a living child and has already been pregnant and has successfully given birth, can such a person become a surrogate.

The person must be resident in South Africa at the time of signing the surrogate agreement and her partner must give written consent for surrogacy. The Court may set such consent aside should the partner unreasonably withhold consent. The surrogate must be in good health and should undergo a psychiatric evaluation.

The commissioning parents must have proof that they’re not able to conceive or are unable to have a successful pregnancy, and at least one of them must be resident in South Africa at the time of signing the surrogate agreement. The gametes of one or both parents must be used and they too have to undergo psychiatric evaluation and medical examinations.

The Adele van der Walt Incorporated spokesperson noted “An agreement must be signed and only once a High Court of the country confirms the surrogacy agreement, may they proceed with the surrogacy. Should the surrogacy take place before confirmation of the agreement by a High Court, then the surrogate carrying the gametes becomes the legal parent.”

The Children’s Act furthermore stipulates that once the child is born, the commissioning parents automatically become the legal parents and guardians of the child. The surrogate thus relinquishes any parental rights to the child. With such, no adoption is required.

Compensation may be awarded to the surrogate for financial costs related to the surrogacy such as medical costs and loss of income if the person isn’t working during the surrogacy. The legal fees for the agreement, Court confirmation, and medical costs are for the account of the commissioning parents.

The surrogacy agreement must be comprehensive to include how the child will be taken care of. The Children’s Act is clear on the issue of surrogacy and with the Act the rights of the child are protected.