Surrogacy in South Africa | Surrogate Agreements

How Surrogacy Regulation Became Part of the Children’s Act of 2005

Surrogacy in South Africa has been available for many years before the regulation thereof through Chapter 19 of the Children’s Act of 2005. Chapter 19 came into effect in 2010.

The first recognised instance of surrogacy in South Africa was in 1987 when a woman by the name of Karen Ferreira Jorge carried and gave birth to the babies of her daughter. The woman was 48 years old and she gave birth to triplets. The daughter was not able to conceive, carry to term and give birth to her own children. She did not want to use an unknown surrogate out of fear that such a surrogate may not make true on her undertaking to give the children to her upon birth.

At that stage, surrogacy in South Africa was not prohibited, nor governed by law as the law in place at the time regulated artificial insemination of persons in the Human Tissue Act of 1983. Surrogacy was also not prohibited or provided for in the Children’s Status Act of 1987.

Following the birthing of the triplets, it became clear that regulation of surrogacy in South Africa was necessary. The South African Litigation Centre (SALC) investigated the issue and published a working paper on surrogacy in 1989 followed by a Report on Surrogacy Motherhood in 1993. At the same time, the Ad Hoc Parliamentary Committee (AHPC) received draft legislation on the matter.

The AHPC conducted workshops and public hearings on the matter. Surrogacy experts were called in and written submissions were made on the Commission Report Schedule A. The AHPC also conducted study tours in various provinces of South Africa and visits were made to the UK and USA to gain an understanding of how the countries dealt with the legal matters of surrogacy.

The finalised report was published in 1999 and upon the recommendations of the report, the SALC created the draft legislation. The Child Care Act also came under review in 1998. The Issue Paper on the topic showed that surrogacy in South Africa was not properly regulated and it called for legislative control on the matter. It was followed by the Discussion Paper in 2001. It became clear that many issues had to be specifically addressed.

A report was published on the matter in 2002. According to the recommendation of the AHPC and SALC, the Surrogacy Act should form part of the new Children’s Act. The Children’s Bill was approved in 2005 and it was the first South African legislation to regulate surrogacy in South Africa. The Children’s Act came into effect in 2010.

Surrogacy in South Africa, according to the Children’s Act is only allowed for altruistic reasons. As such, no party to the agreement may commercially benefit from surrogacy. The surrogacy agreement must be confirmed by a High Court of the country before the IVF process can commence. It is illegal to advertise the need for a surrogate in the media. The Court must be satisfied that all requirements of the law have been met before the surrogacy agreement will be confirmed.

Disclaimer:
Information in this article is not intended as legal advice and is only for informational purposes. Please seek legal guidance from Adele van der Walt Incorporated before relying on this information to make any legal decisions.