The Legal Aspects of Terminating a Surrogacy Agreement or Pregnancy in South Africa

The Children’s Act No. 38 of 2005 governs the various legal aspects of surrogacy ranging from the surrogate motherhood, agreement, and IVF to the child’s status and the surrogate’s right to terminate the pregnancy. In terms of Chapter 19 of the Act (Section 298), the surrogate, if she is also the biological parent of the child, has the right to terminate the surrogacy agreement through the filing of a written notice that must be submitted to court – provided she does so within 60 days after the child has been born.

The termination is subject to the confirmation of the court. The other parties to the agreement must receive notice, upon which the court schedules a hearing to determine whether the correct procedures have been followed, and that the surrogate mother understands what the effects of the surrogacy agreement termination are, and does so willingly. If the court is satisfied that termination of the agreement is in the child’s best interest and finds the motivation to be valid, the court issues an order to the effect. In this instance, the surrogate is not liable to the commissioning parents for damages and is only liable to compensate them for any payments they have made in terms of costs related and stipulated in Section 301 of the Act.

The law furthermore makes provision for termination of the pregnancy according to Section 300 of Chapter 19. The surrogate has the right to terminate the pregnancy according to the stipulations of the Choice of Termination of Pregnancy Act of 1996. She must inform the commissioning parents before termination takes place and should consult them on the issue. She does not owe the parents any compensation for damages, with the exception of the costs already incurred according to the provisions of Chapter 19 if she terminates the pregnancy for a non-medical reason.

It is imperative to become familiar with all the legal aspects of surrogacy in South Africa if you aim to become a surrogate or want to commission a surrogate to carry your child. From the above information it becomes clear that surrogacy is not without risk to the commissioning parents and as such, we recommend consulting with surrogacy lawyers regarding the various legal aspects to ensure that you make an informed decision before entering into a surrogacy agreement.