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Is surrogacy allowed in South Africa?

May 2017

“Because I am medically unable to give birth to a child, my
husband and I have talked about the option of surrogacy. We
have discussed it with my sister and she has said she is willing
to consider it. We’ve not yet spoken about costs or payment
for her to do this, because we’re not sure whether surrogacy
is allowed in South Africa. Is surrogacy an option we can
consider?”

Surrogacy is allowed in South Africa and is regulated by the Childrens
Act. The Children’s Act contains strict prerequisites which parents must
satisfy before entering into a surrogacy agreement. These prerequisites
include (but are not limited to only these):

• The commissioning parent or parents are not able to give birth
to a child and the condition is permanent and irreversible;
• They must be competent to enter into a surrogate agreement;
• They must be suitable parents to take care of a child; and
• They must accept the legal consequences of the agreement
between them and the surrogate mother.
It is very important to note that no person may in connection with a
surrogate motherhood agreement give or promise to give to any person,
or receive from any person, a reward or compensation in cash or in
kind. The only compensation or payment allowed is compensation for
expenses that relate directly to the artificial fertilisation and pregnancy of
the surrogate mother, the birth of the child, confirmation of the surrogate
motherhood agreement, loss of earnings suffered by the surrogate
mother, or insurance to cover the surrogate mother for anything that
may lead to death or disability brought about by the pregnancy.

The surrogate mother also has to tick certain boxes. She must, for
example, have a documented history of at least one pregnancy and
viable delivery, have one living child of her own, and it must be apparent
that she is not using the surrogacy as a source of income.

No surrogacy in South Africa, even if the above requirements are
met, will be valid without a valid surrogate motherhood agreement
which is in writing, signed by all the parties thereto, and entered into
Family in South Africa and confirmed by the High Court within whose area of
jurisdiction the particular parents are domiciled or habitually resident.
The surrogate motherhood agreement will only be confirmed once all

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