The Legality of Surrogate Motherhood Agreements in South Africa

A brief overview of Surrogacy in terms of The Children’s Act 38 of 2005

A study conducted by the World Health Organisation (WHO) in 2023 revealed that 17.5% of the adult population have difficulty conceiving children worldwide. As a result, many prospective parents have considered and/or utilised Intro-Vitro Fertilisation (IVF) treatment or a surrogate mother as an alternative, thereby also providing same-sex couples with an opportunity to start a family. 

This article aims to provide a brief overview of surrogacy laws in South Africa, particularly the validity requirements of surrogate motherhood agreements (“surrogate agreement”) in accordance with the Children’s Act 38 of 2005 (“the Act”) (prospective parents will be referred to as “commissioning parent/s”).

Surrogate motherhood is defined in the Act as “an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which a surrogate mother undertakes to hand over such child to the commissioning parent upon it’s birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent”.

In South Africa, it is pertinent that such agreements are confirmed by the High Court of South Africa.

Section 292 of the Act highlights the formal requirements necessitated for valid surrogate agreements, inter alia, the agreement is in writing and signed by all the parties, the agreement is concluded within South Africa (“RSA”), at least one of the commissioning parents or parent, if single, is domiciled within the RSA at the time of concluding the agreement, and the surrogate mother and her spouse or permanent life partner is domiciled in the RSA at the time concluding the agreement (although the court may on good cause shown, dispose of this requirement), and that such agreement is confirmed by the High Court within the area of jurisdiction that the commissioning parent/s is domiciled or habitually resident. 

Additionally, section 293 requires the written consent of a commissioning parent and surrogate mother’s spouse, or permanent life partner is obtained and included as a party to the agreement.  

A court will not confirm a surrogate agreement unless the commissioning parent/s are not able to conceive or birth a child due to a condition that is irreversible and permanent.  Moreover, the surrogate mother should not be using the surrogacy as a source of income or for any commercial purposes and may only be compensated for reasonable expenses related to the surrogacy in terms of the Act. The court will also consider the birthing history of the surrogate mother, i.e. a record of at least one pregnancy and viable delivery or whether she has a living child of her own. Artificial fertilisation should not occur before the surrogate agreement is confirmed by the court or 18 months after a surrogate agreement is confirmed by the court.

The current legal position is that the commissioning parents will hold all parental rights and responsibilities in respect of the child once the child is born. The surrogate mother is required to hand over the child to the commissioning parents as soon as reasonably possible and she, her spouse, permanent life partner or relatives will have no right of parenthood or care of the child. They may however, if so, agreed by the parties to the surrogacy agreement, have contact with the child. Lastly, a child born from such surrogacy agreement will have no claim for maintenance or succession against the surrogate mother and her relatives.

Laws surrounding surrogacy in South Africa can be complex due to the emotional nature and financial constraints surrounding the medical and legal process. It is advisable to consult an Attorney before entering into any prospective surrogate motherhood agreements to ensure the legality and compliance of the statutory requirements as stipulated in the Act. 

We at Goliath & Co offer legal assistance in all aspects of Family Law and would be happy to assist in this area of the law!

Robyn Leigh Siljeur

Associate Attorney 

“The greatest good is what we can do for one another. If you have the power to make someone happy, do it…the world needs more of that. There is nothing more beautiful than someone who goes out of their way to make life beautiful for others.”