Surrogacy and the law in South Africa

A surrogate is a woman (surrogate mother) who carries a baby on behalf of future parents (commissioning parties) who are medically unable to do so. Surrogacy in South Africa only became regulated in 2007. It is regulated by the Children’s Act, Act 38 of 2005 (hereafter the “Act”). The Act came into effect in June 2007. In order for the commissioning parties to make use of a surrogate they need to comply with the Act. Thus they will need to have a written agreement with the surrogate mother. This agreement needs to be confirmed by the High Court i.e. be made an order of court. Once the child has been conceived through artificial fertilisation the agreement may not be terminated.

In terms of Section 292 and 293 the surrogate mother needs to be domiciled in South Africa. If she is married or in a relationship her husband and/or partner should agree to her becoming a surrogate. Furthermore the commissioning parents should also be domiciled in South Africa.

Children born from a surrogate mother is by law the child of the commissioning parents. The surrogate mother and her partner has no parental rights towards the child.[1]

A surrogate mother is not allowed to receive payment for being a surrogate, other than expenses that she incurred i.e. medical expenses or loss of income due to her not working. [2]

At least one of the commissioning parents needs to be the biological parent of the child to be born to a surrogate mother. Thus one of the commissioning parents will need to provide either an egg or sperm for the purpose of the artificial fertilisation. The use of donor egg and sperm is prohibited in South Africa. This section of the Act is currently being contested in the High Court of Pretoria. The mother, whose identity is protected in terms of the Act, is unable to fall pregnant by in vetro fertilisation and is not married. She therefore wishes to use a donor egg and sperm, but is prohibited by the Act to do so. She is contesting the prohibition and avers that it is unconstitutional as it is violating her human rights, that of her right to equality and human dignity.  We are currently awaiting the ruling of this.


Due to the sensitive nature of surrogacy and the complexity of the agreement it is of the utmost importance that the surrogacy agreement  be drafted by an attorney.


[1] Section 297.

[2] Section 301.


About The Author

Anye Jansen van Rensburg

Anye holds a LLB and LLM both from the University of Stellenbosch. Her LLM focused in the field of private law. Her dissertation was done in the Law of Trusts and focused on the question of whether a trust is nothing more than a stipulatio alteri, namely a contract for the benefit of a third party. She is an admitted Attorney of the High Court RSA. She joined the firm as a junior associate in July 2014. While she was at the University of Stellenbosch she was selected to be part of the Legal Aid Clinic. She is passionate about the community and assisting the less fortunate with pro bono legal advice. Anye is passionate about the law, women’s rights and mentorship for young women. She is devoted to provide her clients with the best legal advice and assistance.

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