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Important Aspects of the Surrogacy and IVF Laws in South Africa

The surrogacy laws in South Africa stipulate that the gametes of at least one of the commissioning parents must be used in the in-vitro fertilisation of the surrogate. This means that either the eggs of the female partner or the sperm of the male partner must be used. According to the surrogacy laws of the country, same-sex couples in South Africa are allowed to make use of a surrogate to carry and give birth to their child. If it is a female same-sex couple, the eggs of at least one of the couple must be used and where it is a male same-sex couple, one of them must provide the sperm for the IVF process.

Some related frequently-asked questions about the sperm and egg donation and IVF process are briefly answered below:

How many embryos can be transferred?

Though the laws regarding the number of embryos to be transferred differ, in South Africa the maximum number is set at three embryos for each transfer and, as such, should a transfer be unsuccessful, it is possible to have another transfer of a maximum of three embryos per IVF. That being said, SASREG (Society of Reproductive Medicine & Gynaecology Endoscopy) recommends a transfer of only one embryo at a time. Where the commissioning female is in her late thirties and provides the eggs, SASREG recommends transferring of a maximum of two embryos at a time.

What if the child born from the surrogacy wants to meet the egg or sperm donor?

The child, according to the surrogacy laws in South Africa, does not have the right to find and contact the donor of the egg or sperm used in the IVF process. This is in the instance where a donor egg or sperm from a person other than the commissioning parents is used. The donor’s identity is protected.

How will the commissioning parents know that the donor of the eggs or sperm has the desired characteristics?

The parents receive a profile of the donor, which includes their academic achievements.

Can pre-implant genetic screening be done?

It is an expensive procedure and not yet legal to do so for the purpose of surrogacy in South Africa.

How long can the IVF gametes be stored legally?

The embryos are frozen and stored for no longer than ten years according to the requirements of the law.

What is the timeframe in which the surrogacy must take place?

South African law stipulates that no artificial insemination of the surrogate may be done if more than 18 months have lapsed after the confirmation of the surrogacy agreement by the court.

What if the spouse dies after donating the sperm for the IVF process? Can the living spouse still use the gametes for IVF in terms of surrogacy?

The National Health Act regulates the position.

We recommend seeking legal guidance regarding the IVF process, gamete donation and surrogacy to ensure full compliance with the requirements of the law.