Surrogacy is legal in South Africa under certain conditions.
Only the altruistic modality is allowed and access is given exclusively to residents, i.e. it is neither allowed to pay the surrogate mother nor do have foreigners access to this treatment.
The different sections of this article have been assembled into the following table of contents.
Regulation of surrogacy
Section 19 of the Children's Act, which regulates surrogacy in South Africa, entered into force on 1 April 2010.
Prior to this new legislation, altruistic surrogacy was a common practice but without guarantees for either party. The procedure was done through the renunciation of maternity by the surrogate mother, who was recognized as the mother by the Latin principle mater semper certa est, and adoption by the IPs. It was actually an unrecognized surrogacy.
Actually, that's not like that. South African legislation recognizes this assisted reproduction technique, always for altruistic purposes and only for residents of South Africa, regardless of their marital status and sexual orientation.
Although this regulation prohibits the surrogate from receiving a salary for the pregnancy, she can be paid for the expenses involved in pregnancy.
In addition, it is insisted that the future parents, or at least one of them, must provide the gametes, i.e., the eggs and spermatozoa that will give rise to the future baby.
Finally, it is important to note that this regulation insists that the surrogacy agreement must be in writing, signed by both parties and approved by a Court.
Requirements to become a surrogate in South Africa
In order for a woman to act as surrogate or gestational carrier, she must meet the following requirements:
- Be legally competent to enter into a surrogacy process.
- To be considered a suitable person to be a surrogate in all aspects.
- Understand and accept the legal consequences of the surrogacy agreement and the relevant provisions of the law, including their rights and obligations under the agreement.
- Not using surrogacy as a type of income.
- That the choice of being a surrogate is for altruistic reasons and never commercial.
- Having gone through a pregnancy of one's own child with an uncomplicated delivery.
- Delivering the child born as a result of a valid surrogacy agreement to the Intended parents as soon as possible after giving birth.
In addition, in order for a woman to act as a surrogate, she must have a permit, which must indicate that the intended parents are unable to carry the pregnancy to term.
On the other hand, the surrogate, her partner, husband or relatives do not have any right of filiation or authority of the child born from this surrogacy agreement. She doesn’t have the right to contact the child either, unless specified in the surrogacy contract.
Finally, if the surrogate has contributed her genetic load, she has the right to terminate the contract at any time up to 60 days after the birth. To this end, she must inform the court and the court will determine the confirmation provided that the surrogate certifies that it is a decision taken at liberty and that she is aware of the consequences.
In this case, the surrogate must return the amount of the expenses paid by the intended parents during the process. It should be kept in mind that this only occurs if the surrogate has contributed her genetic load, which is why the law clearly rejects this partial or total surrogacy.
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Financial compensation to the surrogate
The law makes it very clear that commercial surrogacy is not permitted. In addition, it is prohibited for any person to receive any payment in connection with surrogacy treatment.
The only retribution allowed is:
- Compensation for expenses directly related to IVF or artificial insemination of the surrogate, pregnancy, childbirth and legal expenses.
- Compensation for loss of income due to surrogacy treatment.
- Life or disability insurance for the surrogate in case of complications during pregnancy or childbirth.
Acknowledgement of paternity
As we have already commented, the legislation determines that the two IPs must provide their gametes. If this is not possible, at least one of them must do it. This discriminates against couples who both have fertility problems.
If the surrogacy agreement is not approved by the court as the law says, it will be considered null, in which case the pregnant woman will be recognized as the legal mother and her husband as the legal father.
When determining filiation, it is critical to consider when the agreement is signed and the court's approval. If it is before birth, then the intended parents will be recognized as legal parents. If it is after birth, it will be the surrogate and her husband who will obtain filiation.
FAQs from users
Are foreigners able to travel to South Africa for surrogacy?
No, one of the requirements established by law is to be a resident of the country. If a foreign person or couple initiates such treatment in South Africa, the Court will not approve the surrogacy agreement and therefore it will not be safe or legal to do so.
Do they accept surrogates who had trouble giving birth to their own child?
In principle, I would not be the best candidate to be a surrogate, since it is preferable that it is a woman whose pregnancy and previous birth have passed without problems in order to reduce the probability of risk. In any case, it will be necessary to make an assessment of the problems she had previously in order to determine whether it is appropriate for her to become a surrogate.
Can the surrogate keep the baby?
If she has contributed the genetic load, she will have a maximum of 60 days to claim the maternity of the baby. She will also have a right to the baby if the agreement has not been approved by a Court, since in that case she will be considered the legal mother of the child for having given birth.
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As commented, South Africa is not a recommended destination for foreign IPs. They’d have to resort to the options listed in the following article: Which country is best for foreign IPs?
If you also need more information about the surrogacy process step by step, we invite you to continue reading here: How does surrogacy work?
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