More Articles

Surrogate Mother

Legal Considerations When Finding a Surrogate Mother

Understanding the intricate legalities around surrogacy law in South Africa can be a complex and overwhelming undertaking. If you want to utilise the services of a surrogate mother but are unsure of where to begin, it's imperative to understand the law and work alongside a legal team who can support you.

Surrogacy law is regulated under the Children's Act No. 38 of 2005 in South Africa. Under surrogacy law, which was regulated in 2007, the surrogate mother will carry the child on behalf of the intended or commissioned parents. There must be a written agreement between the intended parents and the surrogate, and this must be made an order of the High Court to ensure legal eligibility. This process ensures that the child is legally regarded as the child of the commissioning parents and not of the surrogate. As such, the surrogate will have no legal responsibilities over the child once they are born.

Finding a Surrogate Mother

What to Keep in Mind Before Finding a Surrogate

Under surrogacy law, there are many stipulations. It is paramount to consider the conditions below before opting for surrogacy and finding a surrogate mother.

  • The surrogate should embark on surrogacy for altruistic motives, not financial ones. While the intended parents can certainly reimburse the surrogate mother for all medical expenses or loss of income, there should be no financial benefit.
  • At least one of the intended parents must be biologically related to the child. With gestational carrier surrogacy, the egg and sperm from the intended parents are used. In traditional surrogacy, the surrogate mother's eggs are used alongside the intended parent's sperm to conceive the child.
  • Surrogate mothers and the intended parents must also undergo professional psychological evaluations prior to the agreement being made legal.
  • A surrogate must also have had one full-term healthy pregnancy before being eligible. 
  • Both the surrogate mother and intended parents must be domiciled in South Africa throughout the pregnancy. If the surrogate is married or in a long-term relationship, their partner must agree to the process too.


Our Expert Legal Team Can Offer Surrogacy Support

Surrogacy can be an emotional and highly sensitive undertaking. While it brings many families the wonderful gift of a child, it can be daunting to navigate all the legalities without professional support. We provide comprehensive legal assistance to our clients, guiding them every step of the way on their surrogacy journey. For more information on how Adele van der Walt Inc. can assist you with the process of surrogacy, get in touch with us via our contact form. Alternatively, give us a call at +27 (0) 12 460 3668, and we will gladly discuss the next steps. 

Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant to the date of publishing – January 2023.