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When Surrogacy is Your Last Option

When surrogacy is your last option and you’re ready to setup a surrogacy agreement, you should get in contact with medical law attorneys to help you through the process. Note that in South Africa, it’s illegal to pay someone or to commercially benefit from surrogacy agreements.

Does it mean that you cannot pay for costs?

No, it simply means you cannot give the surrogate more money than is needed to cover the costs of the surrogacy and compensation for loss of income during the pregnancy. The commissioning parents normally pay for the medical expenses of all parties involved, lawyer fees, social worker, psychologist assessment fees, court fees, surrogacy agreement, and any related costs.

Surrogacy agreements

Surrogacy is a rather personal experience, especially in South Africa, where the act is usually altruistic and done by someone that knows one or both of the commissioning parents. As such, it’s important to discuss the issues in detail with all parties involved. The surrogate gives up her parental rights from the moment that the child is born. The commissioning parents don’t have to adopt the child since the baby is theirs from the moment of birth.

When is the baby the surrogate’s?

If the in-vitro process is started before a surrogate agreement is signed by all parties involved and approved by a high court in South Africa, the surrogacy isn’t valid and the surrogate is considered the legal parent of the child.

Medical considerations

The commissioning parents and the surrogate must undergo medical exams. The exams will show that the couple is infertile or at least one of them or the mother is not able to carry the baby to birth. The exams will also show whether the surrogate is medically fit to carry the baby and give birth.

All parties must undergo a psychiatric evaluation to determine their mental and emotional states. In addition, a social worker will do an assessment regarding the physical and emotional stability and ability to be parents as well as to assess the same for the surrogate.

Requirements by law

Make sure you and your partner as well as the surrogate meets the minimum requirements. The surrogate must have at least one living child of her own. She must have the consent of her partner to go through the process and must have been pregnant and have given birth to a living child.

The commissioning parents must be able to show that one of them is infertile or unable to give birth. One or both must reside in South Africa at the time of signing the surrogacy agreement. The gametes of one or both parents must be used for the surrogacy.


It’s not the cheapest route to having your own baby. Apart from the medical expenses of the surrogate, you also need to consider legal costs. Our lawyers will explain the general costs in detail, giving you an idea of what to budget for before you start the process.

Emotional strain

The process can be stressful, especially when considering that the surrogate may decide to terminate the pregnancy for reasons other than medical. She has the right to do so after having discussed the issues with the commissioning parents. She will then be liable for the costs up to the time of termination.

You also need to prepare emotionally for the chances of unsuccessful pregnancy or complications during the pregnancy. When you thus choose a surrogate, select a person you know are healthy and have a history of uncomplicated pregnancies and birth.

Talk to us regarding the process and let us help you to draw up the surrogacy agreement.