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Vital Information on Using a Surrogate Mother: What You Need to Know

If you have been barren or have struggled to successfully give birth to a child of your own or you are a same sex couple who want a child of your own, you may at this stage consider surrogacy. However, if you are considering using a surrogate mother, here are a few things that you need to know…

Only Altruistic Surrogacy in South Africa

Unlike many other countries where young surrogates are financially compensated for their services, it is illegal in South Africa to pay a surrogate or have any party profit from the process. This doesn’t mean that you won’t have to pay any fees. Indeed, as the commissioning parents you will be responsible for various costs, including:

  • Legal fees of the attorneys for drafting the surrogacy agreement and submitting the application to the High Court for approval.
  • Medical costs associated with the IVF.
  • Various assessments including the psychological, social worker and medical assessments of the surrogate and of you and your partner.
  • Costs associated with hospitalisation, doctor visits and any other medical costs directly associated with the surrogacy.
  • Compensation for loss of earnings if the surrogate is unable to work during the period.


Surrogate Mother Screening

To protect both parties, the screening process for surrogates is quite extensive. The surrogate must be in good mental, physical and emotional health, and she must be at least 21 years old. To protect against possible birth defects and to minimise health risks to the surrogate, the general rule is that the surrogate mother cannot be over the age of 43, unless this can be motivated by the Gynaecologist.

With the commercial benefit aspect eliminated regarding surrogacy in South Africa, you do have to ensure that the potential candidate does not have a financial motive to be a surrogate mother. The person is most certainly someone who is unselfish, but it is still important that she has the consent of her partner and that she must have previously given birth to a child of her own. She must have at least one living child and the birthing must have been without any serious complications. The BMI must be appropriate for the particular age and built of the surrogate, and she must live in South Africa at the time of signing the agreement.

Maximum Number of Surrogate Pregnancies

The South African surrogate law doesn’t stipulate how many times a person can be a surrogate, but the fertility clinics normally don’t use anyone who already had three surrogacy pregnancies to minimise the health and emotional risks to the surrogate.

Two Types of Surrogacy Pregnancies

Before considering using a surrogate mother you need to know which type of surrogacy you plan. The law states that the gametes of at least one parent must be used in the surrogacy. The gestational surrogacy is when donor eggs or the intended mother’s eggs are used in the fertilisation process and the traditional surrogacy entails usage of the surrogate’s eggs and the sperm from the male commissioning parent.

Contact us at Adele van der Walt for expert guidance regarding using a surrogate mother and legal information on what you need to know before starting the process.


Note that the information in this article is for informational purposes only and should not be seen as an attempt to provide legal advice. We strongly recommend that you contact us at Adele van der Walt Incorporated for professional legal advice.