Written by: Ruth Simoné Gray
29 May 2024

Surrogacy Application Process, Agreements and Implications in South Africa

For many individuals and couples who are unable to have children of their own, adoption is often presented as the primary option. However, surrogacy offers an alternative path to parenthood that, while complex and potentially costly, allows people to have a biological child. This article breaks down the key elements of the surrogacy application process in South Africa, including essential considerations for those who may be exploring surrogacy as an option.

What Is Surrogacy?

In a surrogate pregnancy, eggs from the woman who will carry the child (the surrogate) or an egg donor are fertilised with sperm from a sperm donor to create an embryo.

Key points to consider about surrogacy include:

The Surrogate Mother’s Role: A surrogate mother carries a child on behalf of a commissioning parent(s) due to their inability to conceive naturally. The surrogate mother must be capable of carrying a baby to term.
Medical Requirements: The commissioning parent(s) must have a medical condition that is both permanent and irreversible, preventing them from conceiving a child naturally before surrogacy can be considered.
The Use of Gametes: It is important to note that at least one of the commissioning parents’ gametes must be used for surrogacy to be considered a viable option. Single individuals must use their own gametes. This requirement is essential for the surrogacy agreement to be considered legally valid and binding.
Conditions of the Agreement:  A surrogacy agreement must be entered into within South Africa, with all parties, including the commissioning parent(s), the surrogate, and the surrogate’s spouse, if applicable, domiciled within South Africa. The agreement cannot be made verbally; it must be in writing and signed by all parties.
Court Confirmation: The High Court must confirm the surrogacy agreement before any artificial fertilisation can occur. A surrogacy agreement cannot be granted after a child has been born and has to be brought before artificial fertilisation.

What Is The Legal Process When Applying for Surrogacy in South Africa?

Before a surrogacy agreement is eligible for confirmation by the High Court, the following steps must be taken:

  1. Drafting the Agreement: A surrogacy agreement must be drawn up and signed by the surrogate mother, her partner (if applicable), and the commissioning parent(s).
  2. Expert Assessment Reports: Reports must be obtained from social workers and/or psychological experts who specialise in evaluating the commissioning parents and their suitability as parents, as well as the surrogate mother and her partner (if applicable) and her suitability to be a surrogate mother.
  3. Police Clearance Certificates: Both the commissioning parents and the surrogate mother must obtain police clearance certificates.
  4. Medical Report: A comprehensive medical report detailing the surrogate mother’s overall health, how many pregnancies she has carried to term, and if not, the complications that arose, as well as all other applicable health factors to assess her capacity to carry a child to term.
  5. Payment Details: Details and proof of any payment made to the surrogate or an intermediary as compensation for any service rendered, along with explanations for such payments, as allowed under the Children’s Act 38 of 2005 (as amended).
  6. Agency Affidavit (if applicable): If an agency was involved, an affidavit detailing the full particulars of such agency and if any payment was received must be obtained. Additionally, an affidavit from a member of the agency must be provided to outline any assistance rendered in the surrogacy process.

Once all documentation is in order, a formal Ex Parte application must be submitted to the High Court. This application must justify why the surrogacy agreement should be approved, including the above documentation for the Court’s consideration in the adjudication and confirmation of the surrogacy agreement.

What Important Clauses Should Be Contained In a Legal Surrogacy Agreement?

Key clauses in a surrogacy agreement should include:

  • Confidentiality: Protects parties’ privacy and personal information.
  • Surrogate’s Responsibilities: Outlines the expectations and responsibilities of the surrogate mother during the surrogacy process.
  • Commissioning Parents’ Responsibilities: Defines the expectations and responsibilities of the commissioning parent(s) during the surrogacy process.
  • Compensation and Reimbursements: Details any agreed-upon compensationfrom commissioning parents to the surrogate for medical expenses, travel expenses, loss of income (if applicable), insurance, and experts who provide professional legal and/or medical services for the confirmation of the surrogacy agreement before Court.
  • Duration and Termination of the Agreement: Specifies the duration of the surrogacy agreement and the conditions for the termination of the agreement.
  • Medical Risks and Indemnities: Details any medical risks or indemnities that may be necessary during the surrogacy process.
  • Medical Evaluations: Outlines any medical evaluations or screenings and how these will be facilitated and paid for.
  • Termination of Pregnancy: Specifies factors that could lead to the termination of the surrogate’s pregnancyas well as the rights and obligations of all parties involved in this regard.
  • Implications of Breach: Outlines the implications if any party breaches the surrogacy agreement.
  • Custody and Parental Rights: Confirms that the custody and parental rights will vest in the commissioning parent(s) on the birth of the child.
  • Use of Gametes: Confirms gametes (sperm or egg) were used and which commissioning parent(s)they come from.

What Other Factors Does the Court Consider in Confirming Surrogacy Agreements?

The Court considers various factors, including:

  • Suitability of Commissioning Parents: The Court assesses whether the commissioning parent(s)are fit and proper and can look after a child with the child’s best interests as their primary consideration.
  • Financial Stability: The commissioning parent(s) must be able to afford both the surrogacy process and the costs of raising the child.
  • Living Conditions: The Court will evaluate whether the living environment of the commissioning parents is conducive to the child’s upbringing.
  • Background Check: The commissioning parents’ background, including any criminal records accompanied by a full explanation in terms of such a record, will be reviewed to ensure they are suitable as parents to the child.
  • Relationship of Commissioning Parents: The Court will consider whether the commissioning parent(s) are in a same-sex relationship or a heterosexual relationship, and the public nature of their relationship.
  • Surrogate’s Experience: The surrogate mother’s previous experience with pregnancy, including any prior surrogate pregnancies, and her overall health.
  • Prior Surrogacy Applications: The Court will examine any previous surrogacy applications submitted by the commissioning parents to understand any past challenges.
  • Family Unit and Household: The existence of a stable family unit within the commissioning parent(s)’ household.

Is a Surrogate Mother Entitled to Compensation for Agreeing to be a Surrogate Mother?

In South Africa, commercial surrogacy is illegal, meaning surrogate mothers cannot receive payment for carrying a child. However, some exceptions allow for compensation for specific costs, including:
Loss of Earnings: If the surrogate mother can prove that she has suffered a loss of earnings by being a surrogate, she may be reimbursed, provided that the loss is reasonable and that she did not voluntarily leave her job.
Life and Disability Insurance: Life and disability cover must be taken out for the surrogate mother to protect against risks during the pregnancy.
Reimbursements for Expenses: The surrogate may be reimbursed for medical, travel, and pregnancy-related expenses. These costs must be outlined in the surrogacy agreement.

How Long is the Court Order Valid after the Court Approves the Surrogacy Application?

Once the Court has made a declaratory order confirming the surrogacy agreement, the parties have 18 months to give effect to the order. This does not mean that the surrogate mother has to give birth to the child within 18 months, but it does mean that the artificial fertilisation and confirmed pregnancy have to take place within those 18 months.

Should circumstances arise where no pregnancy has been confirmed within the 18 months since the granting of the court order, the parties may apply to the Court for an extension, and they will be required to set out in detail why such an extension should be granted. It will then be in the Court’s discretion to grant or refuse such a request for an extension.

Need Help with Surrogacy Applications and Legal agreements? Contact Burger Huyser Attorneys Today.

Surrogacy is a complex yet fulfilling path to parenthood that involves a series of legal, medical, and emotional considerations. By understanding the legal framework and essential steps, commissioning parents can make informed decisions that protect everyone involved. Contact Burger Huyser Attorneys for expert assistance with a surrogacy application or answers to any questions you may have. Our skilled family law attorneys have vast experience with surrogacy cases and will help you navigate the surrogacy process with clarity and confidence. be sure to arrange a consultation with one of our family law specialists or phone us directly on the numbers below.

Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;

Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE