A surrogate is a woman who carries a baby on behalf of future parents who are medically unable to do so. This can be an exciting and life-changing experience, but there are complex legal, medical and ethical guidelines which govern this process.
Altruistic surrogacy is legal in South Africa – this means that surrogate mothers (SM’s) may not use surrogacy as a source of income or for commercial purposes. In addition, an SM may only be a surrogate for future parents (also known as the “commissioning parents”) who are domiciled in South Africa.
Visitors reading this should note that surrogacy is not only complex, but also expensive and is really only suitable for women without a uterus, women whose uterus is damaged, or for gay male couples. In addition, the High Court will demand a medical certificate from your doctor saying that you are medically unable to carry a baby.
If it is determined that you are medically unable to carry a baby, then surrogacy is the option for you. Surrogacy in South Africa is legally and medically possible, however it is not easily accessible. As you can understand, there are only a handful of women who are medically, emotionally and psychologically able to carry a baby for someone else. The reality is that there is a shortage of suitable surrogates in South Africa. This means that there is a waiting list of people who need a surrogate.
So what’s involved?
In 2010 when the Children’s Act came into force, surrogacy still remained 100% legal in South Africa and changes to the law were put in place to regulate the surrogacy process and to protect the rights and well-being of all parties involved (the surrogate mother, the commissioning parent(s) and the unborn child(ren). One amendment to the law states that the commissioning parents’ names go directly onto the birth certificate and an adoption is no longer necessary.
Before any treatment can commence, a surrogacy agreement will have to be confirmed and authorised by the High Court (Supreme Court) and only once the court has approved the case and issued a court order, can treatment commence.
The following documents/ assessment reports will be necessary for the High Court application:
- Psychological report for surrogate mother and commissioning parents
- Medical report for commissioning parents with medical proof that they are unable to carry a pregnancy for themselves
- Social worker’s report for surrogate and commissioning parents.
- Surrogacy contract
- Personal identification documents
For more information, you can download or print the “Surrogate Motherhood” section of the Children’s Act, chapter 19
Initial consultations are charged at R1 500 excluding VAT. Thereafter should you wish to continue with the matter, a fee is discussed and agreed upon.