Legislation on surrogacy in South Africa has undergone a process of opening up over the years. In 2005, South Africa became the first country on the African continent to legalize surrogacy with the Alteration of the Children’s Act of 2005. This law establishes requirements and conditions for surrogacy, including the need for contracts and especially their confirmation by the High Court. Since then, the legislation has expanded coverage of the issue by addressing issues such as spousal consent, the genetic origin of the child, and funding for the process. South Africa stands out as a country with broad and detailed legal support for surrogacy, but in many respects, it does not differ from what we know as the emblematic paradigm of exclusive gratuity towards the surrogate mother.
Key legal aspects of surrogacy in South Africa
Regarding the surrogacy contract:
The surrogacy agreement must be established within the territory of South Africa. At least one of the intended parents, or if a single person, that person, must be domiciled in the Republic at the time of signing the agreement. Similarly, the surrogate mother and her spouse or partner, if applicable, must also be domiciled in the Republic at the time of signing the agreement. To be valid, the agreement must be confirmed by the High Court in the district where the intended parents are domiciled or habitually reside. It is prohibited to carry out any fertilization before the agreement is confirmed by the High Court.
Regarding spousal consent:
Spousal or partner consent is also required to validate surrogacy agreements in South Africa. If the intended parent is married or in a stable union, the court requires written consent from the spouse or partner to confirm the agreement. Similarly, if the surrogate mother is married or in a stable relationship, written consent from the spouse or partner is also required. However, if the surrogate mother’s spouse or partner, who is not the genetic parent of the child, unjustly refuses their consent, the court may still confirm the agreement.
Regarding the child’s origins:
The validity of the surrogacy agreement depends on the genetic origin of the child. If both intended parents are involved, their gametes must be used. If this is not possible for medical or biological reasons, at least one parent must contribute their gametes. If only one parent is involved, their gametes will be used in the conception process.
Regarding the confirmation of the agreement:
The confirmation of a surrogacy agreement by the court is subject to several criteria: a) the intended parents must be unable to conceive a child due to a permanent and irreversible condition; b) the surrogate mother must not use surrogacy as a source of income and must have a documented history of successful pregnancies and births, as well as already having a child of her own.
Regarding the effects on the child (and the gestational mother):
The main effect is that any child born through surrogacy is considered, for all legal purposes, the child of the intended parents from the moment of birth. The surrogate mother is obliged to surrender the child to the intended parents as soon as reasonably possible after birth. She and her family have no filiation rights over the child, nor do they have any right to contact, unless otherwise specified in the agreement. After the surrogate mother’s artificial insemination, the agreement cannot be rescinded. Additionally, the child has no right to maintenance or inheritance from the surrogate mother or her family, unless otherwise specified in the agreement.
Regarding contract termination:
Termination allows a surrogate mother to end the contract by notifying the court in writing, up to sixty days after the child’s birth. The court may rescind the confirmation of the agreement if it determines that the surrogate mother has voluntarily terminated it. The surrogate mother is not liable to the intended parents for the contract’s termination, except for reimbursing any payments made by the parents as provided by law.
Regarding voluntary termination of pregnancy:
The termination of a surrogacy agreement is accomplished through the termination of pregnancy, in accordance with the Choice on Termination of Pregnancy Act of 1996. The decision to abort lies with the surrogate mother, but she must inform the intended parents and consult with them before the termination. According to the law, the decision to abort is conditioned on medical reasons, and the surrogate mother must financially reimburse the sponsors.
Regarding financial aspects:
- The surrogate mother and intermediaries cannot receive any payment or financial reward.
- Payments are allowed for clinics, hospitals, doctors, laboratories, and all bureaucratic and legal services.
- Insurance companies may offer their services.
Legal uncertainty regarding parental leave:
Labor legislation in South Africa, such as the Labour Relations Act and the Parental Leave Act, establishes the rights of workers in general, including the right to maternity leave, but does not specifically address surrogacy. There is no specific provision in the law detailing this issue. Therefore, the legal gap must be covered by agreements. This lack of clarity raises questions about whether the surrogate mother, being the most vulnerable party in the relationship with her employer and funders, would have fewer means, both material and negotiation, for the agreement to meet her needs.
Emblematic cases of surrogacy involving South Africa:
The beginning: first case in South Africa (1987): South African Karen Ferreira Jorge, 25, turned to her mother, Pat Anthony, 47, as a surrogate mother. Through in vitro fertilization, Karen’s eggs were implanted into Pat’s uterus, resulting in the birth of triplets, one of the earliest known cases of surrogacy in the world. This event raised ethical and legal issues, highlighting the importance of the legal context in South Africa (1).
Baby Gammy case (2014): Although this case occurred in Thailand, it involved a South African in vitro fertilization agency. It was widely publicized internationally and sparked a debate on the complexities of surrogacy and the rejection of “intended parents” to children with special needs (2).
Custody conflict: Case in Pretoria (2022): A legal dispute arose over children born through surrogacy in Pretoria, South Africa. The case involves a woman who acted as a surrogate mother for her brother and his wife but then sought to obtain custody of the children, arguing that the parents had not fulfilled the agreement. This incident highlights the legal and emotional challenges associated with surrogacy (3).
Who are surrogate mothers in South Africa?
According to South African law, surrogate mothers can be nationals or foreigners. There is no specific prohibition for foreigners to act as surrogate mothers in South Africa because the South African Children’s Act (Act 38 of 2005) does not explicitly prohibit foreigners from being surrogate mothers. Interpretations of the law and its practical application may vary depending on the case and jurisdiction. The fact that, at least in law, surrogacy in South Africa is conditioned to the altruism of the surrogate mother makes potential funders encounter difficulties in finding a surrogate mother willing to take on the physical, psychological, and human risks of surrogacy. This makes clinics the main intermediaries between them and surrogate mothers in South Africa, where there are a multitude of clinics operating for years. The strength and duration of South African law have led to a huge contingent of fertility clinics working in surrogacy, among the main ones are:
Vitalab
Cape Fertility Clinic
Medfem Fertility Clinic
Aevitas Fertility Clinic
HART Fertility Clinic
Tygerberg Fertility Clinic
Sandton Fertility Clinic
Life Fertility Clinic
Johannesburg Fertility Centre
Fertility Clinic Pretoria
South Africa, a Key Player in the HCCH:
It is worth noting that South Africa plays an active role in the Hague Conference on Private International Law (HCCH) regarding surrogacy (GPA). The HCCH is an intergovernmental organization working to unify and harmonize the laws of 90 countries on surrogacy and contribute, through this harmonization, to the proliferation of surrogacy worldwide. South Africa, with its permissive, solid, and longstanding legal framework regarding surrogacy, participates in discussions and negotiations within the HCCH with the aim of developing a unified convention. This participation aims to contribute to the creation of international legal standards that can facilitate access to parenthood for “intended parents” – the commissioning parents.