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Surrogacy Laws in South Africa

Surrogacy Laws in South Africa Regarding Complex Issues

Chapter 19 of the South African Children’s Act is one of the first surrogacy laws in South Africa, affording infertile couples the ability to follow the surrogacy route in having a genetically linked child of their own and having the protection of a legal agreement.

Surrogacy agreements are governed by the surrogacy laws in South Africa and accordingly, the agreement must be confirmed by a High Court of the country before the IVF process can commence. A child born from a surrogacy agreement not confirmed by the High Court of South Africa is legally the child of the surrogate. Also, keep in mind that all parties to such an agreement and medical professionals who have commenced with the IVF process regarding the surrogacy can be prosecuted for breaking the law if the agreement has not been confirmed by the High Court.

According to the surrogacy laws of South Africa, the surrogate must agree by means of the surrogacy agreement to hand over the child after birth to the commissioning parents as soon as is possible. The surrogate thus relinquishes any parental rights with the child. Unless so agreed in the surrogacy agreement, the surrogate and her family have no right to any form of contact with the child after the child has been handed over to the commissioning parents.

The Court must be satisfied that the surrogate has entered into the agreement of her own free will and has not done so because she is in financial need. As such, the surrogate must be mentally able to understand the terms of the agreement and the implication of the surrogacy. She must be emotionally stable and physically able to carry and give birth to the child. The Court, therefore, requires a social worker, medical professional assessment, and psychological assessment of the surrogate to determine that she meets the requirements.

She must be domiciled in the country at the time of signing the agreement, must have the written consent of her partner regarding the surrogacy, and must have given birth to at least one child of her own. Moreover, she must have at least one living child of her own.

Though the surrogacy laws of South Africa do not stipulate how many times a person can be a surrogate, the requirement of physical health should be noted. A person after three such surrogacies would, for instance, risk her health and the health of the child if she was to attempt a fourth surrogacy. As such, it is best to discuss particulars, such as how many IVF attempts, how many surrogacies, how many embryos and more with a lawyer who understands the surrogacy laws in South Africa.

For more information regarding surrogacy agreements in South Africa, contact our team at Adele van der Walt Incorporated.


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 before relying on this information to make any legal decisions.