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Gay Couples Can Make Use of a Surrogate Mother to Realise Their Dream of Having a Child

Surrogacy in South Africa, as governed by the Children’s Act of 2005, is only allowed for altruistic reasons. This doesn’t mean that the surrogate and parties such as the fertility clinic or the lawyers may not receive compensation for their services. They do provide professional services and the surrogate does have costs for she is entitled to compensation. The law makes provision for the payment of costs by the commissioning parents.

Surrogacy is often the last resort for commissioning parents who long to have a child of their own. The couples may already have undergone several fertility treatments or may be unable to carry a child of their own.  As a result, it is possible to act as surrogate mother for heterosexual or gay couples, provided the surrogate only receives compensation for costs associated with the surrogacy.

The law in South Africa stipulates that the surrogacy is only legal if the agreement has been confirmed by the High Court. Once done, the commissioning parents become the rightful parents of the child upon the child’s birth. This means that a gay couple making use of a surrogate mother becomes the parents of the child and the surrogate may not be stated as the mother on the birth certificate. Note that they are the rightful parents without having to go through an adoption process.

It should be noted that at least one or both the commissioning parents must provide the gametes for the fertilisation. If it is a gay couple only one parent has to provide the gametes (although both can be used). However, both partners are the parents by law.

Finding a suitable surrogate mother is not always easy. There are procedures in place for screening of the candidates, even if the candidate is a family member or friend of the commissioning couple. Requirements are strict, stating that the surrogate mother must:

  • Be resident in South Africa at the time of signing the agreement.
  • Be in good mental, emotional and physical health and must have at least one living child of her own.
  • Have successfully given birth to a living child before.
  • Have the consent of her spouse to enter into the surrogacy agreement unless the spouse withholds such unreasonably in which case the Court can put the consent aside.

The screening processes of the surrogacy or fertility clinics in South Africa differ, but for the purpose of providing supporting evidence to Court in the application for the approval of the surrogacy agreement, the screenings have in common:

  • Physical assessment of the surrogate to determine whether she is healthy enough and capable of carrying the child to birth.
  • Mental assessment in the form of psychological testing to determine the surrogate’s mental and emotional state.
  • Social worker assessment to determine whether the surrogate has an adequate support network available.

The commissioning parents must also undergo medical, psychological and social work screening irrespective of whether they are same sex or heterosexual couples.

Note that the surrogate can still terminate the pregnancy upon discussion of her decision with the commissioning parents. If done for reasons other than medically related, she can be held accountable for the costs of the surrogacy. However, once the child is born she has no further parental rights and no right to contact with the child unless otherwise agreed in the surrogacy agreement with the commissioning parents.