For many people who cannot carry a pregnancy, surrogacy offers a path to parenthood. South Africa has a detailed legal framework for surrogacy in Chapter 19 of the Children’s Act 38 of 2005. It protects the child, the surrogate and the commissioning parents, but it is strict. An agreement that is not confirmed by the High Court before the surrogate is artificially fertilised is invalid, and the child will be treated as the surrogate’s child.
The basic requirements
Under section 292 of the Children’s Act, a surrogate motherhood agreement is valid only if:
- it is in writing and signed by all the parties;
- it is entered into in South Africa;
- at least one commissioning parent, and the surrogate (and her spouse or partner, if any), are domiciled in South Africa, although the court may dispense with this for the surrogate on good cause; and
- it is confirmed by the High Court within whose area the commissioning parent(s) are domiciled or habitually resident.
The commissioning parents may be a married or unmarried couple, including a same-sex couple, or a single person.
The genetic link
Section 294 requires that the child be conceived using the gametes of both commissioning parents. Where that is not possible for biological, medical or other valid reasons, the gamete of at least one commissioning parent must be used. A single commissioning parent must use their own gamete.
In AB v Minister of Social Development 2017 (3) SA 570 (CC), the Constitutional Court upheld this requirement. As a result, a person who cannot contribute any gametes cannot use surrogacy and must consider adoption instead.
What the court must be satisfied of
Under section 295, the High Court will confirm the agreement only if, among other things:
- the commissioning parent(s) are unable to give birth to a child, and the condition is permanent and irreversible;
- the commissioning parent(s) understand and accept the legal consequences, and are suitable to be parents;
- the surrogate understands and accepts the legal consequences, is not using surrogacy as a source of income, and is using it for altruistic reasons;
- the surrogate has a documented history of at least one pregnancy and viable delivery, and has a living child of her own;
- the agreement includes adequate provisions for the contact, care, upbringing and general welfare of the child, including if the commissioning parents die or divorce before the birth; and
- the agreement is, in all the circumstances, in the best interests of the child.
The spouse or partner of the surrogate must consent to the agreement (section 293). In practice, the application is supported by medical reports, psychological assessments of all parties, police clearances, financial information and proof of the parties’ relationships. In Ex parte WH 2011 (6) SA 514 (GNP), the court set out detailed guidance on what applications should contain. Applications must be full and frank, and courts have refused or postponed applications where evidence was missing.
Courts continue to apply these requirements flexibly in new family situations. In a July 2026 judgment, for example, the Mpumalanga High Court confirmed a surrogacy agreement within a polygamous customary marriage, finding that the arrangement complied with the Children’s Act and did not offend customary law.
Timing: confirmation before fertilisation
Artificial fertilisation of the surrogate may not take place before the agreement is confirmed by the court. It must take place within 18 months of confirmation (section 296). Fertilising a surrogate without a confirmed agreement is an offence under section 303.
Payment
Commercial surrogacy is prohibited. Under section 301, the surrogate may not be paid a fee or reward. However, the commissioning parents may pay:
- expenses related to the artificial fertilisation, pregnancy, birth and confirmation of the agreement;
- the surrogate’s loss of earnings as a result of the agreement; and
- insurance to cover anything that may lead to the surrogate’s death or disability.
Any other payment is unlawful, and anyone who offers or receives a prohibited payment commits an offence.
When the child is born
A child born under a valid agreement is, for all purposes, the child of the commissioning parent(s) from the moment of birth (section 297). The surrogate must hand the child over as soon as reasonably possible, and she and her family have no rights of parenthood, care or contact unless the agreement provides otherwise.
There is one important exception. Where the surrogate is also the genetic parent (traditional or partial surrogacy, using her own egg), she may terminate the agreement by filing written notice with the court within 60 days after the birth (section 298). The court will then make appropriate orders in the child’s best interests.
The surrogate also retains the right to decide on termination of the pregnancy under the Choice on Termination of Pregnancy Act, after consulting the commissioning parents (section 300).
Birth registration
Once the child is born, the confirmed court order is used to register the birth with the commissioning parents recorded as the parents. Practical delays at Home Affairs are common, so it is worth preparing the documents in advance.
International surrogacy
Many people consider surrogacy abroad. South African law does not prohibit commissioning parents from using a foreign surrogate, but the South African legal protections will not apply. Bringing the child home, and establishing legal parenthood in South Africa, may require further court applications, such as adoption or orders from the High Court as upper guardian. Advice should be obtained before entering into any foreign arrangement.
How O’Reilly Law can help
We draft surrogate motherhood agreements and bring High Court confirmation applications, working with fertility clinics, psychologists and the surrogate’s legal adviser. We also assist with birth registration and with questions about international surrogacy. Contact us to discuss your situation in confidence.
Related reading: Care and contact under the Children’s Act · Living together, not married
This article is general information and not legal advice. Surrogacy applications are fact-specific and practice requirements differ between divisions of the High Court. Correct as at October 2026.