Surrogacy agreements represent a complex and evolving area of family law in South Africa, reflecting advances in reproductive technology and changing societal values regarding family formation. These agreements involve a woman (the surrogate mother) consenting to carry and give birth to a child for another person or couple (the commissioning parent(s)), who intend to assume full parental responsibilities upon birth.
South African law recognises and regulates surrogacy to protect the rights and interests of all parties involved—especially the child—within a rigorous legal framework designed to prevent exploitation, ensure informed consent, and uphold constitutional values.
This article provides a comprehensive, detailed explanation of surrogacy agreements under South African law, highlighting legal requirements, procedural safeguards, and practical considerations.
Legal Framework Governing Surrogacy Agreements
The primary legislation governing surrogacy in South Africa is the Children’s Act 38 of 2005, as amended by the Children’s Amendment Act 41 of 2015, which introduced clear provisions regulating surrogacy arrangements (Sections 294A to 294F).
The Act establishes that surrogacy agreements are only valid and enforceable if approved by the High Court before the child’s birth, ensuring judicial oversight and protection.
Key Elements of Surrogacy Agreements
1. Parties to the Agreement
- The surrogate mother, who consents to conceive and carry the child.
- The commissioning parent(s), who intend to become the child’s legal parents.
- The agreement may involve married or unmarried commissioning parents, including same-sex couples and single individuals.
2. Requirements for Validity
To be valid, a surrogacy agreement must:
- Be in writing and signed by all parties.
- Be approved by the High Court before conception or implantation.
- Include comprehensive provisions detailing parental rights, responsibilities, financial arrangements, medical procedures, and consent.
- Demonstrate that the commissioning parents are unable to conceive or carry a child for medical reasons or other legitimate causes.
Court Approval Process
3. Judicial Oversight and Approval
The High Court’s approval is essential and is granted only after satisfying that:
- The surrogate mother and commissioning parents have freely and fully consented to the arrangement.
- The agreement promotes the best interests and welfare of the child to be born.
- The surrogate mother has received independent legal advice and counselling.
- The arrangement does not violate public policy or ethical standards.
- Medical practitioners confirm the medical suitability of the surrogate mother.
The court retains discretion and may impose conditions or refuse approval where concerns arise.
Rights and Responsibilities
4. Surrogate Mother
- Has the right to medical care and counselling throughout the pregnancy.
- Is entitled to be informed and consulted regarding medical decisions affecting her health.
- Is not considered the legal mother after birth if the surrogacy agreement is valid and approved.
5. Commissioning Parents
- Acquire full parental rights upon the court’s confirmation of parentage post-birth.
- Are responsible for the child’s maintenance, upbringing, and welfare.
- Must adhere to any financial or medical obligations outlined in the agreement.
Post-Birth Legal Procedures
6. Parental Orders
Following birth, commissioning parents must apply to the High Court for a parental order, which:
- Transfers full legal parentage from the surrogate mother to the commissioning parents.
- Amends the child’s birth registration to reflect the commissioning parents as legal parents.
- Protects the child’s legal status and identity.
Ethical and Practical Considerations
- Surrogacy must be altruistic; commercial surrogacy is prohibited under South African law.
- The process requires multidisciplinary involvement, including legal, medical, and psychological professionals.
- Confidentiality and the child’s rights to identity and information must be safeguarded.
- The surrogate mother retains the right to terminate the pregnancy or withdraw consent before birth, highlighting the non-binding nature of the agreement until court approval.
Conclusion
Surrogacy agreements in South Africa are subject to stringent legal and ethical regulation to balance the rights and interests of surrogate mothers, commissioning parents, and most importantly, the child. Judicial oversight ensures that surrogacy arrangements serve the best interests of the child, prevent exploitation, and provide clear legal certainty.
Legal practitioners advising clients on surrogacy must navigate a nuanced landscape of statutory requirements, court procedures, and ethical considerations to secure compliant, fair, and sustainable surrogacy outcomes.