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Surrogacy | Becoming a Surrogate

Surrogacy in South Africa is regulated by Chapter 19 of the Children’s Act, 38 of 2005 (the “Children’s Act”). South Africa is at the forefront of surrogacy in the world with specific law relating to and regulating surrogate motherhood agreements, and subsequent surrogacy journeys.

Prior to Chapter 19 coming into law on 1 April 2010, the common practice was to enter into a written Surrogate Motherhood Agreement, and then on the birth of the child or children, to approach the relevant Children’s Court for a known adoption. This was due to the fact that the birth mother (the surrogate) was automatically assumed to be the biological mother of the child and automatically obtained full parental responsibilities and rights. If she was married at the time, then her husband would also obtain full parental responsibilities and rights by operation of the law. Commissioning parents were required to adopt their own biological child, which in itself is non-sensical and specifically what the law relating to surrogacy tries to alleviate.

A known adoption is no longer required because parties to a Surrogate Motherhood Agreement are required to approach the High Court in whose jurisdiction they are domiciled, prior to any treatment being undertaken by the fertility clinic, for an order in terms of which they ask the court to confirm the written Surrogate Motherhood Agreement entered into between the commissioning parents and the surrogate parents. This serves to confirm that the parental responsibilities and rights are those of the commissioning parents and not those of the surrogate mother and if she is married, her husband; and to specifically authorise the doctors performing the artificial fertilisation, to perform artificial fertilisation.

Commercial surrogacy in South Africa is illegal and is only allowed on an altruistic basis. Any payments, whether in cash or in kind, that are not regulated by the Surrogate Motherhood Agreement in terms of Chapter 19, are considered illegal and carry criminal sanctions. The only payments that are allowed relate to the payment of professional services (medical, legal and psychological), reasonable expenses, loss of earnings, medical aid and life insurance, all of which are strictly regulated in the Surrogate Motherhood Agreement. It must be noted that the payment of an agency fee to find a surrogate is also outlawed by Chapter 19.

If you are interested in becoming a surrogate, please click on the button below.

1. The Clinic
There are several fertility clinics which deal with surrogacy treatment around South Africa so we would be aiming to keep your travelling time to the clinic to a minimum. The choice of clinic will be dependent on where you live, the intended Commissioning Parent(s) situation and whether they have embryos already created or if they are starting from scratch and obviously who their treating clinic is. There are a number of clinics around South Africa that have good surrogacy experience and with whom we work closely.
2. Initial Medical Screening for Surrogates
The intended Commissioning Parent(s) will need to make their first appointment with the fertility clinic, if they aren’t already patients. If you are happy to consent, we can email the clinic your information so that they have this for their records and will be able to make contact with you when it is time to organise your first appointment. The clinic will advise at which point they will want to see you, but it will usually follow the intended Commissioning Parent(s) consultation once their initial blood and investigations have been completed. Your first appointment at the clinic will be with a doctor who is a gynaecologist and fertility specialist. This will in all likelihood be the same one that your intended Commissioning Parent(s) have seen and who will be responsible for the treatment. If the clinic has a surrogacy co-ordinator, then you will also meet with this person. The surrogacy co-ordinator primarily looks after surrogacies and will be closely involved in coordinating your treatment and cycles.

At your appointment, the doctor will go over your medical and obstetric history and make an initial assessment as to your suitability to becoming a Surrogate Mother. This will include ultrasound scan which checks for abnormalities inside the uterus. The clinic will be looking for any previous scar tissue, the lining of your uterus and its general health and any abnormalities to either the lining or the uterus itself such as benign uterine growths like polyps or fibroids. This is to give the embryos the best chance. The scan is performed by transvaginal ultrasound.

The doctor will advise what is required, so that you can ensure all investigations are done to enable treatment to start as soon as possible. They will also take bloods for screening tests and do a basic health check including your height, weight and blood pressure, amongst other tests.

They will also want to talk you through things in more detail and ensure you understand all aspects of the treatment and are there to answer any questions or concerns you may have with regards to the treatment process. Your partner is required to attend the appointment with you in order for him/her to undergo certain blood screening tests and so they also understand the processes involved and because he or she will have to be a party to the Surrogate Motherhood Agreement and legal process.

The clinic will then draft a medical report setting out the various results of your initial medical screening. This report, with your consent, will be provided to Fertility/AMA Law and will be used in the High Court Application.

3. Psychological Assessment
A specific legal requirement for a person to be declared suitable to act as a Surrogate Mother is to undergo a psychological assessment with a clinic psychologist. This may be the same person that assisted Fertility/AMA Law with your initial screening and surrogacy preparation counselling. If not, it will entail you (and your partner if you have one) completing a questionnaire, which contains detailed information about you, your partner, and your respective backgrounds and psychiatric history. You (and your partner if you have one) will also be required to attend a consultation with the clinic psychologist, at which time she will assess your suitability to act as a Surrogate Mother. This consultation is approximately 3 hours long.

The clinical psychologist will then draft a report setting out your background and her findings and results of your initial psychological screening. This report, with your consent, will be provided to Fertility/AMA Law and will be used in the High Court Application.

4. Starting Treatment
Once all infection and medical screening and psychological assessments have been successfully completed, and the High Court Application granted and obtained from the relevant Registrar, starting treatment is the next step.
5. Medication
Some clinics may recommend that you start taking Folic Acid and a pre-natal vitamin as a pre-pregnancy supplement once the treatment has been planned. You may also be asked to start taking the contraceptive pill if you are not already, which allows the clinic to accurately time your menstrual cycle, which helps with booking and planning appointments and coordinating your cycle with that of the intended mother or egg donor in a fresh cycle. You will usually be asked to take the pill on day one of your period the month preceding the planned treatment cycle. You will have a treatment information appointment, usually with your intended Commissioning Parent(s), when you will give consent to the treatment plan and sign various clinic forms. This meeting will plan your dates for the cycle, inform you of any potential side effects to medications, show you how to administer the medications/injections and answer any questions you may have. Clinics have a responsibility to encourage everyone to reflect on any decisions before they obtain your consent and will give you all the opportunity to ask questions and receive further information, advice and guidance. If you do not understand anything, or have any specific questions, you are free to ask a representative of Fertility Law for advice.
6. Endometrial Scratch

Some clinics may recommend a procedure called an endometrial scratch which helps implantation of the embryo. The decision to have this additional procedure is dependent on your circumstance and the recommendations of the clinic. The procedure is simple and takes between 20-30 minutes to complete. It is relatively painless and similar to a cervical smear test. A speculum in inserted in to the vagina and warm antiseptic solution is used to clean the vagina and cervix. The catheter is inserted and slides down the cervical canal into the womb. The womb lining is then scratched with the small catheter and the catheter withdrawn. The idea is that the scratching helps the womb lining to regenerate and stimulate the immune system cells and therefore the growth factors. This is believed to make the womb lining more receptive to embryo implantation and some studies have shown that by performing this procedure it helps to improve implantation rate.

7. Stimulation

Because the Down Regulation medication shuts down your normal cycle and prevents you from ovulating, your body won’t receive the normal signal that you might become pregnant. It is therefore necessary for you to take hormones to start the process that would have occurred naturally. You will need to take both oestrogen and progesterone to prepare your uterine lining to be receptive to any embryos that are transferred. You will be given a date to start taking the oestrogen tablets to build up your womb lining usually on the same day that the intended mother or egg donor starts her ovarian stimulation drugs in a fresh cycle. Instructions will be given by the clinic on the particular medication and dose used. Once this has been taken for 10-14 days (mid cycle) you will be asked to attend an appointment for either an ultrasound scan to assess the thickness of the lining of your womb, or a blood test. If it hasn’t thickened enough, then occasionally it is necessary to prescribe extra oestrogen. Meanwhile the intended mother or egg donor will be taking daily fertility injections so that her ovaries produce extra eggs. On either the evening before or the morning that the eggs are retrieved you will take your first dose of progesterone to prevent you rejecting the pregnancy. Progesterone is usually administered in the form of pessaries and again the clinic will give you guidance of how and when to take these. A blood test will then be performed to help determine whether the lining of your womb is ready to accept an embryo or if your progesterone dose needs adjusting.

8. In Vitro Fertilisation (IVF)

On the same day that the eggs are retrieved from the intended mother or egg donor, the clinic will combine them with sperm (in vitro fertilisation (IVF)). The clinic will monitor the embryos closely during the days following IVF to see which ones have fertilised. The fertilised ones are graded and the most viable are chosen for an initial transfer and any others are frozen for future use. Embryos are transferred on either Day 3 or Day 5 (blastocyst stage) after fertilisation depending on the clinic’s protocols. Usually one single embryo is transferred but there may be compelling reasons for more than one embryo to be transferred which the clinic will discuss with you and your intended Commissioning Parent(s). This will be something that you will have discussed with both your intended parents and your consultant to decide which will be the best treatment course. Your clinic will always ensure that the best possible outcome is achieved without you being put at any undue increased risk.

9. Frozen Cycle

If the IP’s are using frozen embryos the process will usually be similar using embryos that have previously been frozen and this will usually be easier to co-ordinate as you don’t have to sync up a cycle with another person.

10. Natural Cycle (with Frozen Embryos)

A natural cycle IVF is when you don’t use high doses of fertility drugs, instead opting for a drug-free approach. Your urine will be monitored to predict the date of ovulation, and when the date of ovulation is diagnosed, the embryo transfer will be performed. Again, clinics vary in their policies on this and will be able to give you their guidance on success rates and recommendations specific to you. Some clinics don’t advocate this method due to the possible decreased chance of success because they do not have control over your cycle. It is not possible to do a natural cycle if you are hoping to have a fresh transfer due to the complexities involved in synching your cycle with either the intended mother or egg donor.

11. Embryo Transfer

Embryo transfer is a simple procedure and will be performed on either day 3 or day 5 after fertilisation. The procedure is performed in a treatment room which is usually set up like a small theatre room and usually adjacent to the IVF lab where the embryos are stored.

Embryo transfer is often likened to a cervical smear test and usually you will be asked to lie down and place your legs in stirrups. To start with the doctor or nurse will gently insert a speculum into your vagina. This is the same as a cervical smear test where the speculum is used to keep your vaginal wall apart and for them to see your cervix. In the meantime, the embryologists will draw the embryo into a catheter ready to be transferred. Once the speculum is in position the fine tube catheter (with the embryo in it), is carefully passed through the cervix (normally using ultrasound guidance) and placed into position in the womb before the embryo is slowly deposited into place. If they are using ultrasound guidance there is a chance to see the tiny embryo sitting on your womb lining. The doctor or nurse will then remove the catheter slowly and the embryologist will check the catheter to ensure the embryo is no longer visible and transfer is complete.

This is normally a pain-free procedure and usually no sedation is necessary, but you may experience a little discomfort because you need a full bladder if ultrasound is used. You can then go home and resume normal activities. It is generally recommended that you lead a gentle lifestyle during the few days after embryo transfer and avoid heavy lifting and vigorous exercise for the rest of the day. Embryos are held tightly between the walls of the womb where surface tension forces are far greater than gravity, so there is no chance of it falling out. You must not have sexual intercourse during this period to ensure that any pregnancy is the result of the IVF. You may also experience some spotting and sometimes mild cramping pains following the transfer. If you are concerned about these symptoms it is always recommended that you speak to your clinic. They will give you guidance on any other potential side effects and what to do in any event. There are no significant risks during embryo transfer, but it will depend on your cervix.

12. The 2 Week Wait

This is often the most nerve-racking time of the whole treatment process. It is normal to want to feel like you could do a test every day, but most clinics will recommend that you wait until around 14 days following embryo transfer to test. Tests performed within 2 weeks may not be accurate. You will also be required to continue taking both the progesterone and oestrogen until the pregnancy test date. It is important to continue with this to ensure that your body does not reject the pregnancy. During this time if you experience any severe side effects such as bleeding or cramping then the clinic will have given you a 24-hour contact number to speak with one of the nurses or consultants. After 14 days, you will usually do a urinary pregnancy test at home, inform the clinic and they will organise a follow up visit regardless of the result.

13. Positive Test Result

You will do two pregnancy blood tests. The first will be done roughly 7 days after the embryo transfer and the second will be done 2 days after the first blood test.

If you are pregnant then you will be advised to continue taking both the progesterone and oestrogen until further notice. Stopping these medications prematurely if pregnant can cause a miscarriage. The clinic will then organise a scan several weeks later to confirm the pregnancy and to check if you are carrying a singleton or multiples.

14. 6 and 10 Week Scans

Once you have received your second positive blood test results, the fertility clinic that did the embryo transfer and who is treating you and the Commissioning Parents, will schedule two scans, to be done at the fertility clinic.

6 Week Foetal Heart Beat Scan – this is performed via a vaginal ultrasound to detect and listen to the foetus’s heartbeat. The foetus is still technically an embryo at this stage.

10 Week Scan – this scan occurs at roughly 10 weeks of the pregnancy and will be the final scan that is completed by the fertility clinic treating you and the Commissioning Parents. It is at this scan that the embryo is technically now a foetus. At this scan, the fertility clinic and Commissioning Parents may request that a blood test, called an NIPT TriScreen tests. It is a single maternal blood draw from the surrogate mother’s arm, and is used to screen for the most common chromosomal aneuploidies (abnormalities).

15. Treatment Checklist

Initial consultation with the fertility clinic

  • Blood tests completed
  • Physical uterus scans complete
  • Psychologist screening
  • Clinic Consents signed
  • Treatment Plan
  • Start Contraceptive Pill/Down Regulation
  • Begin Oestrogen
  • Clinic Scan to check Uterus
  • Begin Progesterone/Egg Collection
  • Embryo Transfer
  • 2 Weeks later – Pregnancy Test
  • Successful Pregnancy Test = Clinic Confirmed Pregnancy by Blood Test/Ultrasound
  • Unsuccessful Pregnancy Test = Consultation to plan for further treatment if all agreed
More Information
We have put together a number of questions that we get from commissioning parents. If there is something that you would like to ask, and which is not covered here, feel free to send us an email info@fertilitylaw.co.za with your specific query, alternatively give us a call to discuss.

There are two main types of surrogacy that are recognised by South African law: gestational surrogacy and traditional surrogacy. In South Africa, gestational surrogacy is far more common than traditional surrogacy, due to the various risks and complications associated with a traditional surrogacy.

Traditional Surrogacy
Traditional surrogacy (also known as partial, genetic, natural or straight surrogacy) involves natural or artificial insemination of a surrogate. The sperm that will be used will be that of the commissioning father. The resulting child or children born are genetically related to both the commissioning father and the surrogate.

The risk associated with a traditional surrogacy is that, in terms of section 298(1) of the Children’s Act, a surrogate mother who is also a genetic parent of the child concerned, may at any time prior to the lapse of a period of sixty days after the birth of the child, terminate the surrogate motherhood agreement by filing written notice with the court. In terms of the Children’s Act, the court must terminate the confirmation of the surrogate motherhood agreement upon finding, after notice to the parties to the agreement and a hearing, that the surrogate mother has voluntarily terminated the agreement and that she understands the effects of the termination. The court may issue any other appropriate order, if it is in the best interest of the child. The result of this cancellation is that the surrogate mother automatically obtains parental responsibilities and rights, along with the commissioning father. The parties will then need to enter into a parental rights agreement to regulate contact, care and maintenance of the child or children born as a result thereof, and have the Court confirm this arrangement.

Gestational Surrogacy
3. Psychological Assessment
A specific legal requirement for a person to be declared suitable to act as a Surrogate Mother is to undergo a psychological assessment with a clinic psychologist. This may be the same person that assisted Fertility/AMA Law with your initial screening and surrogacy preparation counselling. If not, it will entail you (and your partner if you have one) completing a questionnaire, which contains detailed information about you, your partner, and your respective backgrounds and psychiatric history. You (and your partner if you have one) will also be required to attend a consultation with the clinic psychologist, at which time she will assess your suitability to act as a Surrogate Mother. This consultation is approximately 3 hours long.

The clinical psychologist will then draft a report setting out your background and her findings and results of your initial psychological screening. This report, with your consent, will be provided to Fertility/AMA Law and will be used in the High Court Application.

4. Starting Treatment
Once all infection and medical screening and psychological assessments have been successfully completed, and the High Court Application granted and obtained from the relevant Registrar, starting treatment is the next step.
5. Medication
Some clinics may recommend that you start taking Folic Acid and a pre-natal vitamin as a pre-pregnancy supplement once the treatment has been planned. You may also be asked to start taking the contraceptive pill if you are not already, which allows the clinic to accurately time your menstrual cycle, which helps with booking and planning appointments and coordinating your cycle with that of the intended mother or egg donor in a fresh cycle. You will usually be asked to take the pill on day one of your period the month preceding the planned treatment cycle. You will have a treatment information appointment, usually with your intended Commissioning Parent(s), when you will give consent to the treatment plan and sign various clinic forms. This meeting will plan your dates for the cycle, inform you of any potential side effects to medications, show you how to administer the medications/injections and answer any questions you may have. Clinics have a responsibility to encourage everyone to reflect on any decisions before they obtain your consent and will give you all the opportunity to ask questions and receive further information, advice and guidance. If you do not understand anything, or have any specific questions, you are free to ask a representative of Fertility Law for advice.
7. Endometrial Scratch
Some clinics may recommend a procedure called an endometrial scratch which helps implantation of the embryo. The decision to have this additional procedure is dependent on your circumstance and the recommendations of the clinic. The procedure is simple and takes between 20-30 minutes to complete. It is relatively painless and similar to a cervical smear test. A speculum in inserted in to the vagina and warm antiseptic solution is used to clean the vagina and cervix. The catheter is inserted and slides down the cervical canal into the womb. The womb lining is then scratched with the small catheter and the catheter withdrawn. The idea is that the scratching helps the womb lining to regenerate and stimulate the immune system cells and therefore the growth factors. This is believed to make the womb lining more receptive to embryo implantation and some studies have shown that by performing this procedure it helps to improve implantation rate.
8. Stimulation
Because the Down Regulation medication shuts down your normal cycle and prevents you from ovulating, your body won’t receive the normal signal that you might become pregnant. It is therefore necessary for you to take hormones to start the process that would have occurred naturally. You will need to take both oestrogen and progesterone to prepare your uterine lining to be receptive to any embryos that are transferred. You will be given a date to start taking the oestrogen tablets to build up your womb lining usually on the same day that the intended mother or egg donor starts her ovarian stimulation drugs in a fresh cycle. Instructions will be given by the clinic on the particular medication and dose used. Once this has been taken for 10-14 days (mid cycle) you will be asked to attend an appointment for either an ultrasound scan to assess the thickness of the lining of your womb, or a blood test. If it hasn’t thickened enough, then occasionally it is necessary to prescribe extra oestrogen. Meanwhile the intended mother or egg donor will be taking daily fertility injections so that her ovaries produce extra eggs. On either the evening before or the morning that the eggs are retrieved you will take your first dose of progesterone to prevent you rejecting the pregnancy. Progesterone is usually administered in the form of pessaries and again the clinic will give you guidance of how and when to take these. A blood test will then be performed to help determine whether the lining of your womb is ready to accept an embryo or if your progesterone dose needs adjusting.
9. In Vitro Fertilisation (IVF)
On the same day that the eggs are retrieved from the intended mother or egg donor, the clinic will combine them with sperm (in vitro fertilisation (IVF)). The clinic will monitor the embryos closely during the days following IVF to see which ones have fertilised. The fertilised ones are graded and the most viable are chosen for an initial transfer and any others are frozen for future use. Embryos are transferred on either Day 3 or Day 5 (blastocyst stage) after fertilisation depending on the clinic’s protocols. Usually one single embryo is transferred but there may be compelling reasons for more than one embryo to be transferred which the clinic will discuss with you and your intended Commissioning Parent(s). This will be something that you will have discussed with both your intended parents and your consultant to decide which will be the best treatment course. Your clinic will always ensure that the best possible outcome is achieved without you being put at any undue increased risk.
10. Frozen Cycle
If the IP’s are using frozen embryos the process will usually be similar using embryos that have previously been frozen and this will usually be easier to co-ordinate as you don’t have to sync up a cycle with another person.
11. Natural Cycle (with Frozen Embryos)
A natural cycle IVF is when you don’t use high doses of fertility drugs, instead opting for a drug-free approach. Your urine will be monitored to predict the date of ovulation, and when the date of ovulation is diagnosed, the embryo transfer will be performed. Again, clinics vary in their policies on this and will be able to give you their guidance on success rates and recommendations specific to you. Some clinics don’t advocate this method due to the possible decreased chance of success because they do not have control over your cycle. It is not possible to do a natural cycle if you are hoping to have a fresh transfer due to the complexities involved in synching your cycle with either the intended mother or egg donor.
12. Embryo Transfer
Embryo transfer is a simple procedure and will be performed on either day 3 or day 5 after fertilisation. The procedure is performed in a treatment room which is usually set up like a small theatre room and usually adjacent to the IVF lab where the embryos are stored.

Embryo transfer is often likened to a cervical smear test and usually you will be asked to lie down and place your legs in stirrups. To start with the doctor or nurse will gently insert a speculum into your vagina. This is the same as a cervical smear test where the speculum is used to keep your vaginal wall apart and for them to see your cervix. In the meantime, the embryologists will draw the embryo into a catheter ready to be transferred. Once the speculum is in position the fine tube catheter (with the embryo in it), is carefully passed through the cervix (normally using ultrasound guidance) and placed into position in the womb before the embryo is slowly deposited into place. If they are using ultrasound guidance there is a chance to see the tiny embryo sitting on your womb lining. The doctor or nurse will then remove the catheter slowly and the embryologist will check the catheter to ensure the embryo is no longer visible and transfer is complete.

This is normally a pain-free procedure and usually no sedation is necessary, but you may experience a little discomfort because you need a full bladder if ultrasound is used. You can then go home and resume normal activities. It is generally recommended that you lead a gentle lifestyle during the few days after embryo transfer and avoid heavy lifting and vigorous exercise for the rest of the day. Embryos are held tightly between the walls of the womb where surface tension forces are far greater than gravity, so there is no chance of it falling out. You must not have sexual intercourse during this period to ensure that any pregnancy is the result of the IVF. You may also experience some spotting and sometimes mild cramping pains following the transfer. If you are concerned about these symptoms it is always recommended that you speak to your clinic. They will give you guidance on any other potential side effects and what to do in any event. There are no significant risks during embryo transfer, but it will depend on your cervix.

13. The 2 Week Wait
This is often the most nerve-racking time of the whole treatment process. It is normal to want to feel like you could do a test every day, but most clinics will recommend that you wait until around 14 days following embryo transfer to test. Tests performed within 2 weeks may not be accurate. You will also be required to continue taking both the progesterone and oestrogen until the pregnancy test date. It is important to continue with this to ensure that your body does not reject the pregnancy. During this time if you experience any severe side effects such as bleeding or cramping then the clinic will have given you a 24-hour contact number to speak with one of the nurses or consultants. After 14 days, you will usually do a urinary pregnancy test at home, inform the clinic and they will organise a follow up visit regardless of the result.
14. Positive Test Result
If your home test is positive, the clinic will want to confirm this by a blood test. If you are pregnant then you will be advised to continue taking both the progesterone and oestrogen until further notice. Stopping these medications prematurely if pregnant can cause a miscarriage. The clinic will then organise a scan several weeks later to confirm the pregnancy and to check if you are carrying a singleton or multiples.
16. Treatment Checklist

Initial consultation with the fertility clinic

  • Blood tests completed
  • Physical uterus scans complete
  • Psychologist screening
  • Clinic Consents signed
  • Treatment Plan
  • Start Contraceptive Pill/Down Regulation
  • Begin Oestrogen
  • Clinic Scan to check Uterus
  • Begin Progesterone/Egg Collection
  • Embryo Transfer
  • 2 Weeks later – Pregnancy Test
  • Successful Pregnancy Test = Clinic Confirmed Pregnancy by Blood Test/Ultrasound
  • Unsuccessful Pregnancy Test = Consultation to plan for further treatment if all agreed