Becoming a Surrogate in South Africa

There are a number of formal requirements when considering to be a surrogate in South Africa. The surrogate mother and her husband/partner must firstly be domiciled in South Africa. However, this is not a definitive requirement, as the Court will have the final say in whether this must be adhered to.

The surrogate mother must:

• • Be competent to enter into the surrogate motherhood agreement. This means that she must be physically suitable to carry a pregnancy to term, and she must have the necessary competence and knowledge about the surrogacy process
  • Be an acceptable person to act as a surrogate mother
  • Understand and accept the legal consequences of the agreement and the parental rights and obligations that go with that
  • Not be using surrogacy as a source of income
  • Undertake the surrogacy process for altruistic purposes only. Surrogacy should be done out of a desire to give back.  They must not feel obliged, nor do it out of loyalty or for religious reasons
  • Have a documented history of at least one pregnancy that they carried to term
  • Have a living child of her own

When is a surrogate required?

A surrogate is sought out when the Intended Parents are unable to give birth due to a medical condition, which has been diagnosed by a fertility expert.  The condition must be permanent and irreversible. In addition, at least one of the Intended Parents must be genetically related to the child i.e. there needs to be a genetic link to at least one of the Intended Parents.

A surrogate in South Africa does not get paid an income. As mentioned before, surrogacy is done for altruistic reasons only. Chapter 19 of the South African Children’s Act makes provision-specific compensation for:

•  Reasonable Expenses – compensation for expenses that relate directly to IVF (In Vitro Fertilisation) treatments and pregnancy of the surrogate mother, the birth of the child and the confirmation of the surrogate motherhood agreement;
• Loss of Earning – loss of earnings suffered by the surrogate mother as a result of the surrogate motherhood agreement;
• Medical and other insurance – insurance to cover the surrogate mother for anything that may lead to death or disability brought about by the pregnancy
• Any other payment, whether it is in cash or in-kind is illegal and carries with it very serious criminal sanctions;  up to twenty years in prison
• It must be noted that any promise or agreement for the payment of any compensation to surrogate mother or any person is illegal and unenforceable

How long does the surrogacy process take?

There are a number of factors to consider, however, the legal process, together with the screening should not take more than a couple of months. The main delay in the process is actually finding a suitable surrogate. Some have been lucky and have found their perfect surrogate within a week of searching, whilst others have reported that their search took up to a year.

What are the costs involved?

Costs will vary depending on a number of factors – what clinic you use, how many rounds of IVF that you require, what treatment you undergo (use of a sperm/egg donor or not); what attorney you use, what the agreed monthly reasonable expenses are, the level of medical aid and life insurance that you choose to use, the gross income of your surrogate, as well as loss of earnings etc.

As an estimated range in ZAR (as of 2019):

•  IVF Medical costs: R50 000 – R135 000
• Screening Costs: R 17 000 – R 25 000
• Legal Costs: R 60 000 – R 85 000
• Monthly costs during the surrogate journey: R10 000 – R 15 000

What does the surrogacy screening process involve?

The screening process includes:

• Legal consultations to explain the law, process and responsibilities and requirements;
• Psychological assessment;
• Medical Assessment;
• Criminal background check;

What are the laws surrounding the surrogate changing her mind and wanting to keep the baby?

The surrogate will never be allowed to change her mind, as there will be a valid court order in place confirming that the surrogate mother and her partner have no rights or responsibilities towards that child.

Can the commissioning parents decide to change their minds and refuse to take the baby?

No, there will be a valid court order in place confirming that the child is theirs.

What are the laws around terminating the pregnancy?

The decision to terminate a pregnancy lies with surrogate mother, but she must inform and consult with the intended parent/s and the termination must be done in accordance with the requirements of the South African Choice of Termination of Pregnancy Act. 

Surrogate mothers are screened to ensure that they are compliant with the fact that the child is not their child and that they will abide by the decision of the intended parents. The counter also applies, that the commissioning parents will not fight a termination where the pregnancy is a risk to the life and/or health of the surrogate mother. 

South Africa is yet to see a court challenge between a surrogate mother and commissioning parents relating to termination of pregnancy so at this point we are unsure of who the courts would favour in this respect.

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