Understanding the Surrogacy Process in South Africa

Surrogacy is a deeply emotional journey, but it is also an intricate legal minefield.
Because it involves complex medical, ethical, and familial dynamics, the legal framework is exceptionally strict.
Navigating this process without expert legal counsel is a massive risk—whether you are building your family or carrying a child for someone else.
Here is why having specialized legal expertise in your corner is non-negotiable.

Surrogacy is a profoundly life-changing journey, but because it involves intricate medical, ethical, and familial dynamics, the legal framework governing it is exceptionally strict. Navigating this process without dedicated legal counsel is a massive risk for both commissioning parents and surrogate mothers. 

Mobirise

Why Court Sanctioning is the first step

In many jurisdictions, including South Africa, a surrogacy arrangement is not legally valid until it is approved by the High Court. This application must be filed, argued, and granted before any medical procedures or artificial insemination take place.

If a pregnancy occurs before the court signs off, the surrogate mother is legally deemed the natural mother of the child, and the commissioning parents have no automatic parental rights. A specialized attorney ensures that this catastrophic legal oversight never happens.

Critical Legal Safeguards in a Surrogacy Agreement

A bulletproof Surrogacy Agreement, drafted by an expert, addresses the core legal pillars required by the courts:

1

Parental Rights Certainty:

It guarantees that from the moment of birth, the child is legally, constitutionally, and socially the child of the commissioning parents. The surrogate mother waives all parental rights upon signing and court approval.

2

Commercial Prohibition (Altruism):

Laws strictly prohibit commercial surrogacy. Natashia Aysen Attorneys ensures that the financial clauses comply exactly with the law—covering only direct, justifiable expenses (such as medical medical aid, loss of income due to pregnancy, and travel costs). Any unauthorized payment can criminalize the entire arrangement.

3

Genetic Nexus Compliance:

The law typically requires that the child must carry the genetic material of at least one of the commissioning parents. We verify that the medical configurations meet this strict statutory requirement.

4

The "Cooling-Off" Clarity:

While the surrogate mother generally cannot change her mind after birth if the agreement is court-sanctioned, there are highly specific statutory windows regarding termination of pregnancy or exceptions if the surrogate is genetically related to the child (in rare partial surrogacy cases). We ensure everyone fully understands these boundaries.

A Step-by-Step Guide
(Gestational Surrogacy)

• Thorough psychological evaluations for all parties.
• Comprehensive medical assessments for Intended Parents & Surrogate.
• Matching intended parents with a suitable surrogate.
• Drafting the Surrogacy Agreement 

• Drafting and filing the formal application with a High Court.
• Review of the agreement for legal compliance (Children’s Act).
• The Court grants an order confirming the agreement before any procedures start.
• Intended Parents are recognized as legal parents from birth. 

• (Requires court order)
• Genetic material provided (or from donors).
• Embryo creation via In Vitro Fertilization (IVF).
• Transfer of embryo(s) into the surrogate’s uterus.
• Confirmation of pregnancy. 

• Ongoing prenatal medical care for the surrogate.
• Regular check-ups, scans, and health monitoring.
• Continued support, communication, and financial compensation for allowed expenses (e.g., medical, insurance). 

• Surrogate gives birth in a hospital.
• Baby is immediately legally with the Intended Parents.
• Surrogacy ends.
• Intended Parents’ names are directly on the birth certificate.
• Family life begins. 

How to find a Surrogate ?
Family & Friends: Ask trusted loved ones first.
Fertility Clinics: They have pre-screened databases of surrogates and egg donors.

• Must live in South Africa.
• Must be of childbearing age and mentally/physically healthy.
• Must already have at least one living child of her own.
• Needs her partner's written consent.
• Cannot be paid (except for direct medical/pregnancy expenses).
• Must have a good emotional support system. 

• Must have a permanent, medical inability to carry a child.
• Must be resident in South Africa (at least one parent).
• Must have a genetic link to the baby (at least one parent must provide sperm/egg).
• Must pass medical and psychological evaluations. 

You cannot start IVF until the High Court approves your agreement.
The court will look at your background, your finances, and your readiness to be parents. To protect yourself and your future family, you need an experienced surrogacy attorney to handle this legal process.

International surrogacy is illegal here. South African surrogacy must be purely altruistic (not for profit).

Frequently Asked Questions

Yes, one can only become a surrogate for altruistic reasons and may thus not financially gain from the process other than receiving compensation directly related to the expenses associated with the surrogacy. Fertility clinics prefer surrogates between the age of 21 and 42 that have a BMI that’s reasonable, non-smoking, and not have a medical history of two or more caesarean sections. The surrogate should have a good medical record and requires a strong family support system.

The surrogacy agreement stipulates contact rights between the surrogate and the child. Unless so agreed in the contract, the surrogate and her family don’t have any rights to contact with the child.

Yes, the law makes provision for the right to termination for medical reasons. The surrogate must inform the commissioning parents about the need and decision to do so. In this instance, the commissioning parents will still have to pay for the expenses. If, however, the surrogate decides to terminate the pregnancy for reasons other than medical, she must discuss the issue with the commissioning parents and will then be liable for the expenses associated with the surrogacy.

The intending surrogate will need to undergo several evaluations and, once matched with the commissioning couple, will also need to undergo medical evaluations. Such evaluations include full examinations, reviewing of her medical history, and blood tests. The treatment process only starts after the surrogacy agreement has been signed by all parties involved, and a court order granted. She will receive medication for controlling of the menstrual cycle to coincide with that of the egg donor. After the eggs have been harvested and fertilisation takes place, the fertilised eggs are placed into her uterus. She will undergo monitoring and have to visit the attending medical specialist on agreed dates and give birth at the chosen hospital.

CONTACT US

By Appointment Only
Address:

134 Silverton Road,
Musgrave
Durban

Phone:

061 053 5773

Working Hours:

Mon - Fri : 8:00am to 4:30pm

FIND US

We are centrally based in Durban within the Musgrave area

Natashia Aysen© Copyright 2018 - All Rights Reserved