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In this guide
By Onah Attorneys Inc • Updated July 2026 • Legal information, not a substitute for advice on your specific matter.
South Africa has one of the world’s clearest surrogacy frameworks — altruistic surrogacy, court-confirmed BEFORE conception, with the commissioning parents recognised as legal parents from birth. But the framework is strict: skip the sequence and the child is legally the surrogate’s. Here is the process, in order.
The golden rule: confirm first, conceive second
Chapter 19 of the Children’s Act requires the surrogate motherhood agreement to be CONFIRMED BY THE HIGH COURT before artificial fertilisation. Conceive first and the agreement is invalid — the surrogate is the legal mother and adoption becomes your only route. Everything in surrogacy planning serves the court date.
Who qualifies
Commissioning parent(s): permanently and irreversibly unable to give birth (medical evidence), domiciled in SA. The surrogate: a documented history of at least one healthy pregnancy and living child of her own, psychologically and medically assessed, motivated altruistically. The genetic link rule: the gamete(s) of at least one commissioning parent must be used — full ‘donor-donor’ surrogacy is not permitted (a rule the courts have upheld).
Altruistic only
The surrogate may receive ONLY: medical expenses, reasonable pregnancy-related costs, loss of earnings, insurance. Paying a fee is a criminal offence — ‘compensation packages’ marketed online are how agreements die at court. The agreement itemises the lawful categories precisely.
The High Court application
The agreement (drafted to the Act’s checklist) plus: medical reports on the commissioning parents’ condition, the surrogate’s medical and psychological evaluations, clinical psychologist reports on all parties, home circumstances, the fertility clinic’s details. Courts scrutinise genuinely — well-prepared applications are granted; thin ones are postponed while the clinic’s calendar burns. Timeline: 2–4 months prep, then the hearing.
After birth
The child is the commissioning parents’ legally FROM BIRTH — no adoption, no transfer; the birth is registered accordingly. A narrow exception: where the surrogate is also the genetic mother (her egg), she may terminate the agreement within 60 days of birth — one of several reasons gestational surrogacy (donor or commissioning mother’s egg) is the standard advice.
Frequently asked questions
Can single people or same-sex couples commission surrogacy?
Yes — the Act is status-neutral: single persons and same-sex couples qualify, subject to the same medical and genetic-link requirements.
Can we use a surrogate from another country?
The framework is domestic — SA domicile requirements apply to commissioning parents; cross-border arrangements add serious complexity and need specific advice.
What does the whole process cost?
Legal + psychological + medical assessments + the application typically run six figures before fertility treatment. The surrogate’s lawful expenses sit on top. Budget honestly — but the legal certainty at birth is the payoff.
What if the surrogate refuses to hand over the baby?
In gestational surrogacy (not her egg) she has no right to keep the child — the confirmed agreement governs and enforcement is swift. The 60-day change-of-mind exists only where she’s the genetic mother.
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