Your Questions Answered About Surrogacy in South Africa

We have answered some of the questions you may have regarding surrogacy in South Africa, including questions about the surrogacy agreement, requirements and possible challenges.

What does the screening process involve for someone who wants to become a surrogate?

It entails medical, social worker and psychological assessments. In addition, you must be a resident in South Arica at the time of signing the surrogacy agreement.

Although the law does not prescribe a restriction on age or stipulates exactly what good medical health is, the screening process normally rules women over the age of 43 and younger than 21.

You must have given birth to a living child of your own before and must have at least one living child. Your partner will need to give written consent for the surrogacy, but if they withhold such unreasonably, then the court may put the consent aside.

The social worker and psychological assessments are conducted to determine your emotional and mental stability, your understanding that you will hand the child over to the parents and, unless otherwise stated in the agreement, will not have any contact rights with the child. It is also important to have a family support structure in place.

With good health, it means that you cannot suffer from a serious chronic condition that can affect you or the baby during the pregnancy. It also means not being addicted to any substance, not being excessively overweight or underweight as this will affect your health. You also may not have received more than two C-sections previously, although this also is not stated specifically.

What are the requirements for the surrogacy agreement to be valid?

The agreement must be signed by all parties and must be confirmed by a High Court of the country. It must not be in contradiction with the law.

What happens if the IVF process is started before the agreement has been confirmed in the High Court?

The agreement becomes invalid and the surrogate becomes the rightful parent of the child.

Do the parents still have to adopt the child?

No. They are the rightful parents and you must hand the child over to them as soon as possible.

What if the surrogate still want to see the child or have her family see the child in future?

You must then ensure that the agreement stipulates contact rights.

How many times can you become a surrogate?

While the law does not stipulate the maximum number of surrogacy pregnancies, the surrogacy and fertility clinics in the country recommend not more than three times. It is a physically and emotionally demanding process, and going through it several times can seriously risk your health.

What is the screening process for donating eggs for a surrogacy?

The donor, if other than one of the commissioning parents, must be aware that donation of the eggs does not give her parental rights or the right to contact the child. She must be in a good physical, emotional and mental state, and must not have any type of medical or psychological disorders. A psychological assessment is made and she must also undergo medical assessments every time she donates eggs, including blood tests for infectious conditions, a pelvic ultra-sound and other medical assessments.

Who should you contact for assistance with the drafting, submission or reviewing of a surrogacy agreement?

Make use of Adele van der Walt’s legal guidance and professional assistance.