Surrogacy in South Africa – Legal Framework

Andrew Martin, LLB
Attorney at HART Fertility Clinic Cape Town, Founder & Director of Fertility Law, HART Fertility Clinic Cape Town

Category:
Surrogacy

Surrogacy in South Africa
From this video you will find out:
  • What are the requirements for surrogacy in South Africa?
  • How do I find a surrogate in South Africa?
  • What is the screening process with regards to surrogates and commissioning parents in South Africa?
  • What is the total cost of the process and what do I pay my surrogate in South Africa?
  • How does the legal side of surrogacy take in South Africa?

Surrogacy in South Africa - Legislation, Timeframe and Costs

Andrew Martin, LLB Attorney at HART Fertility Clinic Cape Town, Founder & Director of Fertility Law is answering the most common questions about surrogacy in South Africa.

Surrogacy in South Africa - Legislation, Timeframe and Costs - Questions and Answers

What are the requirements for surrogacy in South Africa?

South Africa requires the parties to show that they are suitable persons to be considered parents. Our legislation and the courts haven’t defined what exactly a suitable person is or what determines or makes a person a suitable parent. There’s no standard requirement that you must have a certain sum in your bank account, or you must live in a particular area or a suburb. What we provide to the court and what the court has been satisfied with, since the surrogacy inception in 2010 is a relatively thorough psychological screening of the intended parents. Often the psychological assessment takes on asocial worker style assessment, with pictures and a description of the living environment. Most judges and courts do not require this but predominantly what we are looking for is to assess any psychological or psychiatric issues, that might preclude a person from being a suitable parent.

An example might be diagnosed with schizophrenic multiple personality disorder, that presents itself as an aggressive individual something really random. We are able to explain things like currently being treated for anxiety or mild bouts of depression in the past. Those things don’t really play a huge part. We provide the court with a relatively detailed psychological report and assessment. Secondly, there are various medical requirements as we need to show the court that you require to have surrogacy. These include the requirement that at least one of the commissioning parents, or both mother and the father, are genetically linked to the child. Our constitutional court has recently ruled that this is not an infringement of the party constitutional rights. But if both parties are unable to be genetically linked to the child then, unfortunately, surrogacy isn’t an option. Additionally, the mother or both parties must have what is considered edition which is considered permanent and irreversible’ and which prevents them from carrying a child. It’s a relatively politically correct way of saying people can’t have children, especially when we have same-sex male couples using surrogacy because to call it a ‘condition’ which is permanently irreversible is not correct.

Ultimately the doctor confirms that in the case of a heterosexual couple, the wife has had a hysterectomy or something which then prevents her from carrying a pregnancy. The parents also go through a very thorough screening process, doing tests for HIV and STDs and other transmissible diseases. Similarly, for the surrogate, we also check that she’s a suitable person, that she has one living child of her own, that neither the commissioning parents nor surrogate parents have a criminal background, and also that the surrogate gets tested for rare transmissible disorders, HIV and STDs. Then, the interesting requirement, is that the documentation must be in writing and it must be documented and entered in SouthAfrica, so that requires the parties to be present in South Africa when signing surrogacy agreements and the legal affidavits, which we then present to the court. Both parties have to be present in South Africa.

A further requirement which is a sticking point for most couples doing surrogacy is this issue that one of the commissioning parents must be domiciled in South Africa. Domicile is a very interesting concept for them to have used in legislation because it’s relatively open for interpretation. It has what we call a subjective element and inquiry to it, which relates to the intention of the parties. We need to show the court that a person is physically present or was physically present in the past in South Africa and that they have an intention to reside in South Africa at some point in the future indefinitely. So once we were able to show suitability from a psychological criminal and medical perspective, then we’re able to proceed with surrogacy and obviously that we have entered into the relevant documentation in South Africa.

How do I find a surrogate in South Africa?

Unfortunately, I wish the law would change in this respect, but it prohibits surrogacy agencies in South Africa, and it prohibits the ability of a person to source and charge commissioning parents for finding a surrogate. There isn’t an industry in South Africa that goes out and source surrogates. Predominantly how people find surrogates is often through a fertility clinic that has been approached by women wanting to be surrogates. Some egg donors become interested in being surrogates. Fertility clinics, the egg donor agencies, returning surrogates have social media. In South Africa Facebook, Instagram and some international websites, which cater to the finding of surrogates. In my legal practice, we try and assist parents in finding surrogates because we are in the industry and are often contacted by girls who are interested in being surrogates and helping people out. In some instances and where we can we try and help find people but predominantly parents have to go through websites, which provide services and matching of surrogates. There are obvious problems associated with finding women through those sites, and then social media and Facebook seems to be a very big place to find surrogates.

What is the screening process concerning surrogates and commissioning parents in South Africa?

When we try and source surrogates, we start by sending a surrogate asocial worker assessment. She chats with a social worker, who specializes in surrogacy and also has experience in the egg donor industry. They provide us with initial feedback on whether they think that the surrogate would be a suitable person. We send them off for a battery of medical tests. They go for a full gynaecological screening, internal examination, various blood screening tests and HIV, STDs and then once they’ve passed then we move on to a very thorough psychological assessment, which is completed prior to the court process. What we are starting to encourage people once screened is to actually continue seeing the psychologist on an ongoing monthly, or quarterly basis during your journey to ensure that parties are coping well with the surrogacy journey. The screening process involves the medical, psychological and as well as the criminal background checks.

What is the total cost of the process, and what do I pay my surrogate in South Africa? 

Interestingly enough I consulted with two commissioning parents this morning, and both of them asked the exact same question. When it comes to surrogacy in South Africa, it’s very difficult to give people an exact estimate of what it is going to be. I see from looking at the American industry of surrogacy they’re very much able to say that surrogacy is going to cost you X amount of US dollars and that’s what you pay from start to finish. Various monthly costs are associated with surrogacy that you are able to budget for.

These costs relate to medical aid commissioning parents are required to cover. They cover all medical costs associated with the surrogacy and the pregnancy and birth. What we do, is that we ensure that the surrogate has all medical aid and that the commissioning parents then cover the costs of the monthly premium for the medical aid. Depending on the level of cover one takes that is approximately between two and a half to three thousand Rands per month. We also take out a life insurance and disability cover, which predominantly covers the surrogate for about two million rands in the event of their death or disability. They come in at about 350or 400 Rand a month.

Loss of earnings is paid to the surrogate, should she suffer any loss of earnings as a result. This really then just depends on whether your surrogate is employed and what her salary is. The surrogacy contracts tend to break loss of earnings into weekly or monthly loss of earnings, and she then just provides proof of loss of earnings. Then we have this concept of reasonable expenses incurred as a result of the surrogacy, and those vary on a month-to-month basis. Predominantly they tend to come in at about six to eight thousand rands a month. They are paid towards additional nutritional requirements, vitamins, shoes, creams, travel expenses, domestic help, clothing allowance and any other reasonable necessary expenses that you as the commissioning parents would like your surrogate to have. Medical costs vary from clinic to clinic. It really just depends on the number of IVF rounds that you require to do or the number of frozen embryo transfers that you require to do, whether you’re going to use an egg donor. Those monthly costs I mentioned would start from the 1st of the month following on your court order date and would continue for the duration of your journey end, until approximately 2months post-birth, or until she’s declared healthy.

There’s an element of monthly instalments, which are paid and then medical expenses upfront and then they’re also the ad hoc screening expenses during the pregnancy NIPT, tests, fetal assessment, the various obstetrician costs. Legal costs can vary between 50thousand Rand and up. The medical cost varies from about 50 to 60 thousand Rand and up, depending on the type of treatment you do. Unfortunately, I had a couple now who told me that during their journey they did 18 rounds of IVF and were unsuccessful, so they paid hundreds of thousands of rands in medical costs. I’ve had a couple who got pregnant on their first-round and got triplets as a result, so it really just depends.

How long does the legal side of surrogacy take in South Africa?

As I explained, to commissioning parents the legal side of surrogacy in RSA should not take very long. I’ve heard that sometimes it takes between six to eight months to get the legal side of the process done. Predominantly, the delay in the surrogacy journey is finding the surrogate. That can take months if not a year or two. It should take you a couple of months, but once you’ve found your surrogate you shouldn’t take longer than approximately two to three months to get all of the screening procedures, the finalization of the surrogacy agreement and court documentation done and put in court.

It depends on which jurisdiction we were to bring the application. If it were taken to Johannesburg, Durban, Pretoria the courts tend to work on a relatively different scheduling system. The Western Cape High Court in Cape Town the fastest court to get through, so we were able to pick the day on which we would like to bring a surrogacy application and then approach the judge a day and a half before the court application is to be heard in court. Then he or she will decide when they would like to hear the matter. It’s done on the day in question. In Durban, Pretoria and Johannesburg, we take files to the relevant deputy judge president who then allocates the file to a sitting judge who determines when the matter will be heard. That provides a slight delay in a matter of two to three weeks. All in all, the legal side of your journey shouldn’t take more than four or five months. It really also just depends on the speed at which commissioning parents want to move. Some want to move slowly while others want to move fast.

Who needs to reside in South Africa? Does it regard the surrogate or also the future parents or even egg donors?

The law says that one needs to be domiciled in South Africa. At least one of the commissioning parents must be domiciled within South Africa. The act further says that the surrogate should be domiciled within South Africa too, but the court has the authority to waive that requirement. So you can have a foreign surrogate in South Africa. Obviously, you run a risk here, talking from a South African parents’ perspective, having a foreign surrogate. You run the risk of your surrogate being overseas or in a foreign jurisdiction with your medical aid cover, which might not cover medical costs and where medical costs might be prohibitively expensive. So you may have a foreign surrogate. I do have a couple of cases where we are approaching the court to waive the requirement of foreign surrogates, but it’s not that common. Regarding egg donors, it doesn’t matter where your egg donor is from, to be honest. Your egg donor certainly doesn’t need to be living in South Africa, they can be a foreign national.

What are your legal fees?

Predominantly legal fees are charged on an hourly basis. My hourly rate is two thousand six hundred Rands an hour. We try and cap fees and try not to let legal fees be unapproachable for people. But you can look and it really just depends on the complexity of your surrogacy method, but they can they start anywhere from about sixty-five thousand Rand to two hundred thousand rands. I’ve had to deal with some very complicated surrogacy cases, with people coming in from Cyprus, who needed rectification and their bills ran into two hundred thousand Rands. But usually, it’s on the cheaper side. We try and ensure that costs are manageable by people and discussed and agreed to upfront.

Can intended parents be in touch with the surrogate? Can they meet her?

What happens is that once you find a surrogate or you are introduced to a surrogate by a third party or your clinic, then you would be responsible for managing your relationship with your surrogate through the journey. You would probably start with the telephone consultation with your surrogate, to see whether there’s a commonality between the two of you and then it is certainly encouraged that you meet her in person and continue a relationship with your surrogate throughout the duration of your journey. I explain to commissioning parents that we as human beings are so used to this preconceived kind of relationships, that we have an employer-employee relationship which everyone is used to. We have this, friend relationship we have this lover-partner relationship, and so people predominantly try and stick their relationship with a surrogate into one of these boxes. In reality, what one finds, is that each situation is different and you’ve got to develop your type of relationship with your surrogate.

So some commissioning parents want very active involvement on their surrogacy journey, some commissioning parents don’t want any acts of involvement. My for commissioning parents is to think of it as if it was a preferred supplier relationship. If you were a businessman and you had a very good supplier, that you did business with you don’t invite your supplier over for Friday night family dinners and he or she doesn’t come to your house on Sunday. You don’t necessarily send personal WhatsApp messages between each other, but you have a really cordial, friendly relationship. You go out for coffee every now and then, you have the odd lunch, but in reality, you tend to keep your preferred supplier at arm’s length. The reality of this journey is that at the end of your surrogacy journey, you’re predominantly going to cut ties with your surrogate, and if you’ve been too close with your surrogate it does tend to cause emotional problems at the end of your journey. Certainly, you’re in constant contact with your surrogate, and you certainly do meet and continually, chat and talk with her. You are present at most of the scans, and you are present at the birth.

Are there any age limits for parents?

No, there aren’t. Surprisingly, the court has the discretion to decide whether a parent or parents are suitable parents. Now, as explained, suitability isn’t defined and hasn’t been regulated. I have had to commission fathers in their 70swith the court mention of the fact that they are relatively old but still providing and granting the court order. So there isn’t an age limit. I think it would really depend on the judge in question and whether both commissioning parents are elderly or whether it is just one of the commissioning parents that’s elderly. I think the court would look at the age of the commissioning parents in light of them having a child. If both commissioning parents were in their 60s, then potentially the court might have a problem, but it isn’t an official age limit for the commissioning parents.

Could you say for what period of time one of the intended parents needs to be in South Africa?

I think some look at the issue of domicile is something that needs to be assessed on a case-by-case basis. It isn’t a predominantly a set period which is regulated by any regulation. Itis really a hard question to answer. We need to look at the circumstances surrounding connection to South Africa and whether one has been or is intending to be in South Africa. If you were intending this to be honest, I would suggest that you get in touch with me directly and we can look at the circumstances. But predominantly you would have to have been in South Africa. The court has aren’t specified an exact length of time that one would need to be here, but predominately what we’re finding at present is that surrogacy is open for people who were either born in South Africa and they’ve moved away, or they were born elsewhere, and they’ve obtained South African citizenship, or they went to high school in SouthAfrica. Those are the kind of general things that we see when the issue of domicile is presented.

How have e.g. Cypriot parents been able to use a surrogate in South Africa given the residency requirements?

Unfortunately, they weren’t able to get the treatment. Unfortunately, there have been instances of illegal surrogacies being undertaken in South Africa. The court orders were fraudulently issued by a person in South Africa and they’ve impacted a number of couples from Greece, Cyprus and some other European countries. They were unfortunately taken advantage of. We were able to rectify their court orders, so that’s when I talk of Cypriot parents I was rectifying parent surrogacy applications for. Predominantly one needs to show domicile in order to approach our courts.

In the process of surrogacy, can I take my sister to be my surrogate? As she is already living in South Africa. Is it less expensive as I will have my own surrogate? Will I be allowed to fly back to the Netherlands with the child if I did not give birth myself? And how many times do I have to appear in the court?

Your sister can certainly be your surrogate. From a cost perspective, it might reduce your cost slightly from a reasonable exof travel infective, but medical aid, life or obtaining loss of earnings, this somethings are going to be addressed well as medical and legal expenses. Once you obtain a court order, provided African Court for surrogacy, the child is legally your child from the moment of birth, and your name is then recorded on the childbirth certificate. Forms reissued of travelling back to the country or obtaining a foreign-born. Then various forms are filled out for the registration of the birth, and once the child is born alive and confirmed – then that registered birth is then registered at Home Affairs, and a birth certificate is issued that you use to obtain the relevant passport needed for travel. So it really isn’t a question of whether you gave birth to the child or not, it’s just a matter of having the relevant documentation to travel with the child. So passport, birth certificate and then you’d be able to travel. You’d be limited by how old the child is to travel I think. There’s a mandatory limitation of one month or six weeks old to travel internationally, but you’d have to address that directly with the airline you intend flying back with. You don’t necessarily need to appear in court. Our courts don’t require commissioning parents to appear in court. Your advocate can appear in court on the day in question.

Does the high court ever reject an application? What are the most common regions for rejection?

My 12 years of doing surrogacy I have had one court application rejected. We ensure that we have fulfilled all the requirements prior to approaching the court. In the instance of a rejection, the commissioning father had failed to disclose a very serious previous criminal conviction, which coincidentally the judge who is hearing the matter knew about. So the judge was of the opinion that the commissioning father was not a suitable person for surrogacy and therefore rejected and refused the application. But other than that we don’t approach the court until we are fully satisfied that the court application complies with the legal requirements. Having been in the industry for so long we know what the court will want and what the court doesn’t want, and if there are issues with our papers then we specifically address them by way of affidavit. If we go to the court you should get a court order.

Are guarantee programs available at the clinics you cooperate with?

When it comes to surrogacy, I do not think there are. Not that I’m aware of. The problem again with South African surrogacy is that it is uncommercialized. There is no commercial benefit for people to assume to do guarantee programs. I have heard of IVF guarantee schemes, but when it comes to surrogacy, there isn’t one.

With regards to the patients from Germany, where surrogacy is banned? Have you got any patients from Germany and if so how did it work?

I haven’t had any patients from Germany. Interestingly, we are in the process of approaching the court now to authorize artificial fertilization for surrogacy for foreign nationals with their own foreign surrogate who just want to do the treatment in South Africa. This instance relates to say couples from an African country where they don’t have the requisite medical fertility practices, so they are travelling to South Africa to do artificial fertilization and surrogacy. We have to approach the court for an authorization to allow the doctors to perform artificial fertilization. One of the requirements that we are going to ensure that we show the court is that surrogacy is not outlawed or illegal in the country from which they are coming from. In your instance of a German national, I would assume that you would not be able to proceed in South Africa because you’retrying to circumvent your Germanrestrictions by coming to South Africa. We’d need to be open and honest with the court.

Is there a limit of the number of pregnancies that the surrogate can go through?

The court order is again valid for 18 months, so surrogates go through one pregnancy within the 18 months. Again, the wording of our legislation doesn’t necessarily prohibit a surrogate from getting pregnant or having a child and still falling within the 18-month period and then being able to do a second pregnancy. We find that a lot of our clinics are relatively conservative in procedures, post caesarean sections. If you were to go through and have a c-section, some clinics are very cautious and they say there should be six to twelve months between a c-section and fertilisation. It really depends on the circumstances. I’m of the opinion, that after your first birth, in terms of the court order, one would need to approach the court for a second order to ensure that everyone is psychologically reassessed and medical assessments are redone. Just to ensure that everyone is still on the same page and compliant.

Authors
Andrew Martin, LLB

Andrew Martin, LLB

Andrew Martin is an attorney practicing in Cape Town, South Africa under the name and style of AMA Law. He is also the director of Fertility Law (Pty) Ltd, a legal consultancy, whose area of speciality is the law and regulations relating to assisted reproduction treatment. Andrew consults exclusively with various fertility clinics throughout South Africa and he is a member of SASREG’s legal and ethics sub-committee. Having undergone various IVF treatments with his wife, including surrogacy, Andrew has a deep passion and understanding of the industry which is unique to many legal professionals working in this field of law. Andrew is an active campaigner for LGQBT rights and was recently successful in two landmark High Court rulings. The first judgment related to a double embryo transfer in a surrogacy scenario, using one embryo created from each of the fathers. The second judgment authorised and confirmed the parental rights of an unmarried same-sex female couple, to both be considered the parents of a child born to one of the mothers.
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Caroline Kulczycka

Caroline Kulczycka

Caroline Kulczycka is an International Patient Coordinator who has been supporting IVF patients for over 2 years. Always eager to help and provide comprehensive information based on her thorough knowledge and experience whether you are just starting or are in the middle of your IVF journey. She’s a customer care specialist with +10 years of experience, worked also in the tourism industry, and dealt with international customers on a daily basis, including working abroad. When she’s not taking care of her customers and patients, you’ll find her traveling, biking, learning new things, or spending time outdoors.

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