Surrogacy offers a lifeline to couples and single intended parents who cannot carry a pregnancy themselves, whether for medical, genetic, or social reasons. South Africa is often praised for having one of the most progressive legal frameworks on the African continent, yet the process remains highly regulated and, at times, misunderstood. This blog unpacks what surrogacy is, how surrogacy law in South Africa works, and the practical steps prospective parents must follow to build a family through this route.
What is surrogacy?
According to section 1 of the Children's Act, surrogacy is an arrangement in which a woman (the surrogate) agrees to carry a child on behalf of intended parent(s). Two main forms exist. Traditional surrogacy uses the surrogate’s own egg, making her the genetic mother; gestational surrogacy uses an embryo created from the gametes of the commissioning parents or donors, so the surrogate has no genetic link. South African clinics overwhelmingly prefer gestational surrogacy for legal and emotional clarity.
The legal framework: Chapter 19 of the Children's Act
Altruistic only
South Africa only recognises altruistic surrogacy. An altruistic surrogacy can broadly be defined as a surrogacy where a woman carries a surrogate child without receiving commercial compensation. Paying a surrogate beyond reasonable expenses is a criminal offence punishable by fines or imprisonment in terms of section 301 of the Children's Act. The rationale of this prohibition is to prevent exploitation and child trafficking.
High Court confirmation
All surrogacy agreements must be confirmed by a High Court before embryo transfer in terms of section 295 of the Children's Act. The court examines:
- Medical evidence proving the commissioning mother’s permanent infertility or high-risk pregnancy condition.
- Proof of a genetic link between at least one commissioning parent and the child (unless a court waives this on constitutional grounds).
- The surrogate’s full, informed consent and psychological readiness.
- The surrogate’s parental status (she must have at least one living child of her own).
Without confirmation, the agreement is void, and any resulting pregnancy is treated as the surrogate’s own child. This judicial oversight is the backbone of South African surrogacy law.
Parental rights
Once the agreement is confirmed, all parental rights and responsibilities automatically vest in the commissioning parents at birth, and the surrogate has no legal claim over the child. The Department of Home Affairs issues a birth certificate naming the intended parents. Refer to section 1 of the Children's Act for who qualifies as a "commissioning parent".
Eligibility: Who can use surrogacy?
South African surrogacy law applies equally to married, unmarried, heterosexual, and same-sex couples, as well as single persons. A landmark High Court judgment in VJV & RT v Minister of Social Development & Minister of Justice, reaffirmed that same-sex couples have equal access, striking down earlier practice hurdles. Foreign nationals may also enter surrogacy agreements in South Africa, but face additional immigration paperwork and, occasionally, stricter financial-means testing by the court.
Step-by-step process
- Medical screening: Fertility specialists confirm infertility or medical risk.
- Match with a surrogate: Either through an agency or privately; all surrogates undergo medical and psychological screening.
- Drafting the agreement: Attorneys specialising in surrogacy law prepare a contract covering expenses, medical decisions, termination of pregnancy, and post-birth contact.
- High Court application: Filed on affidavit with expert reports; usually granted in chambers within six to eight weeks.
- IVF and embryo transfer: Conducted only after court confirmation.
- Pregnancy monitoring: Regular updates are often stipulated.
- Birth and registration: The child is registered in the commissioning parents’ names; the surrogate signs statutory forms relinquishing any hospital records.
Benefits of South Africa's surrogacy regime
- Legal certainty: Judicial pre-approval means fewer post-birth disputes.
- Equality: Same-sex couples and single parents have the same rights as heterosexual couples.
- Clear parental leave rights: Since 2020, commissioning parents qualify for parental leave equal to adoptive leave provisions.
Challenges and criticisms
The genetic-link rule
Section 294 of the Children’s Act requires at least one commissioning parent to contribute genetic material. Critics argue that this discriminates against infertile couples and single people without viable gametes. Constitutional litigation is pending to strike down or relax this requirement.
High costs despite altruism
Although commercial payment is illegal, cumulative “reasonable expenses” (medical insurance, travel, embryo-transfer fees) can exceed R350 000, a major barrier for lower-income families.
Administrative delay
Some High Courts have surrogacy motion courts only quarterly, causing bottlenecks. Any clerical error can push a hearing to the next term, delaying urgent fertility treatment.
Ethical safeguards
- Independent counselling: Both surrogate and intended parents must receive counselling, reducing power imbalances.
- Cooling-off periods: The surrogate may withdraw consent before pregnancy without liability (except for pre-agreed medical costs).
- Restriction on advertising: Agencies cannot publicly advertise surrogacy services, curbing commercialisation.
Conclusion
Navigating surrogacy law in South Africa demands meticulous legal and medical preparation, yet the framework offers clarity and inclusivity unmatched in many jurisdictions. By requiring court confirmation, the law protects all parties, especially the child, while opening parenthood to couples and singles who once had little hope.
If you want to learn more about the intricacies of South African law, the Gawie le Roux Institute of Law provides comprehensive training and resources for aspiring legal practitioners. Start today to be a part of South Africa’s legal landscape and shape the laws of tomorrow.
FAQs
Is surrogacy legal in South Africa?
Yes. Surrogacy is legal under Chapter 19 of the Children’s Act, provided the agreement is altruistic and confirmed by the High Court before conception.
What are the laws around surrogacy?
Key provisions include: High Court approval, genetic-link requirement, surrogate age and parental-status criteria, prohibition of commercial payment, and automatic transfer of parental rights at birth.
Who owns the baby of a surrogate mother?
Once the High Court-approved surrogacy agreement is in place, the commissioning parent(s) become the legal parents of the baby from the moment of birth; the surrogate has no parental rights.
How much do surrogates get paid in SA?
Surrogates cannot be “paid” in a commercial sense. They may only be reimbursed for reasonable expenses like medical bills, maternity clothing, travel, and loss of earnings. This typically ranges from R120 000 to R200 000 across the pregnancy.
Last updated on 24/11/2025