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surrogate mother

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Surrogacy is allowed in South Africa and is regulated by the Children’s Act.

We received the following question during the course of last week

 “I have been happily married for the last 7 years. However; I am medically unable to produce a child. My husband and I have talked about the option of both adoption and surrogacy. We have decided to go the surrogacy route if we can, and have discussed it with my sister. She is older than me has two children and does not want any more of her own and 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 even allowed in South Africa. Is surrogacy an option we can consider? Your advice would be much appreciated”

We will try and answer her question for her here in this blog as well and summarise our actual advice to her.

Surrogacy is allowed in South Africa and is regulated by the Children's Act. The Children’s Act contains strict prerequisites which parents must satisfy before entering into a 

These prerequisites include (but are not necessarily limited to these prerequisites only. It depends on the facts): 

  1. The commissioning parent or parents are not able to give birth to a child and the condition is permanent and irreversible;
  2. They must be competent to enter into a surrogate agreement;
  3. They must be suitable parents and able to take care of a child; and 
  4. 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 and her labour.

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 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 of the abovementioned restrictions and requirements as required by the Children’s Act have been met and the agreement includes adequate provisions for the contact, care, upbringing, general welfare and best interest of the child.

Before you consider surrogacy as an option, it is recommended that you consult a family law specialist to discuss the requirements for a valid surrogate motherhood agreement.

Please visit our website at or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and we will respond to your legal queries within 48 hours.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.



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