Authored By: Gontse Natasha Modise
Regenesys Business School
Abstract
With particular reference to the Surrogacy (Regulation) Act, 2021, this article explores the legal framework that governs surrogacy in South Africa. It is crucial to emphasise right away that this Act is a piece of Indian legislation and is neither currently in effect nor applicable in South Africa. As a result, the research concentrates on the domestic regulatory framework, which is mainly found in Chapter 19 of the Children’s Act 38 of 2005, and how it interacts with the Republic of South Africa’s 1996 Constitution. The distribution of parental rights, the best interests of the child principle, and the constitutional protections that apply to all parties are all taken into account in this study.
Introduction
Surrogacy is a complicated legal and moral matter that involves issues of consent, parenthood, and safeguarding vulnerable people.[1] Although the Surrogacy (Regulation) Act, 2021 is not a part of South African legislation, it has drawn attention from around the world as a model for regulation. The Children’s Act 2005, which was passed to give surrogacy agreements clarity and structure, is South Africa’s main piece of legislation.[2] This article examines how this system functions, focusing on how parental rights are granted, the function of judicial supervision, and the constitutional factors that influence legislation.
Regulatory Principles and the Legal Framework
Only altruistic surrogacy is allowed in South Africa; commercial surrogacy is forbidden, and the surrogate may only be compensated for legitimate expenditures like lost wages, medical expenses, and travel.[3] Three fundamental ideas form the basis of the law:
The agreement must be freely and voluntarily accepted by all parties, who must be fully aware of their rights and responsibilities.
Judicial confirmation: Prior to any medical operation, a surrogacy agreement must be examined and approved by the High Court.
Section 28(2) of the Constitution upholds the paramountcy of the child’s best interests, which is applicable to all choices that have an impact on the child.[4]
Status and Rights of Parents
Who is acknowledged as the child’s legal parent is the main legal question in surrogacy. According to section 295 of the Children’s Act 2005, commissioning parents automatically acquire parental rights and obligations from the time of birth once the court confirms the agreement.[5] Regardless of the surrogate’s genetic relationship to the kid, this rule is applicable.
The Gauteng High Court upheld this view in the matter of Ex parte JCR and Others 2022 (5) SA 202 (GP), ruling that the commissioning parents are the legal parents from birth and that their information needs to be on the birth certificate.[6] The surrogate loses all legal claim to the kid after the injunction is granted, the court further stressed.
Traditional surrogacy, in which the surrogate supplies her own egg, is subject to a particular clause. Within 60 days of delivery, the surrogate may cancel the agreement under Section 298 of the Children’s Act of 2005, although this option is severely restricted.[7] In order to safeguard the stability of the kid and prevent the arrangement from being exploited, the courts have consistently construed this clause carefully.[8]
Constitutional Aspects
The Republic of South Africa’s 1996 Constitution must be taken into consideration when interpreting surrogacy regulations. Section 294 of the Children’s Act 2005’s genetic link requirement was affirmed by the Constitutional Court in AB and Others v. Minister of Social Development and Others 2016 (4) SA 461 (CC).[9] The court determined that this criterion protects the child’s identity and makes sure the arrangement isn’t exploited for profit.
However, the court acknowledged that the right to family life, guaranteed by Section 24 of the Constitution, meant that the state cannot unduly restrict access to parenting.[10] In KB and Others v Minister of Social Development and Others 2026 (2) SA 151 (CC), the court maintained that the law cannot discriminate against applicants based on marital status, sexual orientation, or gender.[11] As a result, singles, same-sex couples, and unmarried partners have the same rights as married couples, as long as they meet the legislative conditions.
Differentiation from the 2021 Surrogacy (Regulation) Act
It is important to make clear that South Africa is not covered by the Surrogacy (Regulation) Act, 2021.[12] The Indian Parliament passed this law to control surrogacy in that country. It has provisions that are very different from South African law, including limitations on the kinds of surrogacy arrangements that can be made and restrictions on the eligibility of commissioning parents. When dealing with South African legal challenges, it is crucial to rely on domestic legislation and case law because confusion between the two might result in inaccurate legal advice and implementation.[13]
Challenges and Future Considerations.
Despite the clarity of the basic legal position, a number of unresolved questions persist. One major problem is the requirement for a genetic relationship. While constitutionally permissible, couples that rely on donor gametes may face challenges because they lack a biological link to the kid.[14] Although the High Court has the authority to waive this condition in extraordinary cases, the procedure is not always predictable.[15]
Furthermore, there is limited statutory advice on children’s rights to genetic information. Section 41 of the Children’s Act 2005 allows the kid the right to access such material once they reach the age of 18, although the actual methods for implementing this right are currently under development.[16]
Conclusion.
South Africa’s legal framework, as outlined in the Children’s Act 2005, has a strong and balanced approach to surrogacy. It prioritises the kid’s best interests, forbids economic exploitation, and ensures that parental rights are granted to people who plan to raise the child. The Surrogacy (Regulation) Act, 2021 is a major piece of legislation in its own right, but it is not part of South African law.[17] As the area of assisted reproduction evolves, it is expected that additional legal reforms will be proposed to address inadequacies in the current regime, particularly in terms of access and preservation of the child’s right to identification.
Reference(S):
Legislation
– Children’s Act 38 of 2005
– Constitution of the Republic of South Africa, 1996
– Surrogacy (Regulation) Act, 2021 (India)
– Births and Deaths Registration Act 51 of 1992
Case Law
– Ex parte JCR and Others 2022 (5) SA 202 (GP)
– AB and Another v Minister of Social Development and Others 2016 (4) SA 461 (CC)
– KB and Another v Minister of Social Development and Others 2026 (2) SA 151 (CC)
– Ex parte WH 2011 (6) SA 514 (GNP)
– Ex parte SM 2018 (3) SA 123 (GJ)
Secondary Sources
– le Roux G, Understanding Surrogacy Law in South Africa (2025)
– Schoeman S, Parenthood via Surrogacy in South Africa (2025)
– Surrogacy in South Africa (2024) 12 South African Journal of Family Law 45–68
– Core Research Report: Assisted Reproduction in South Africa (2023)
[1] Surrogacy in South Africa (2024) 12 South African Journal of Family Law 45.
[2] Children’s Act 38 of 2005, s 294–303.
[3] Ibid, s 294.
[4] Constitution of the Republic of South Africa, 1996, s 28(2).
[5] Children’s Act 38 of 2005, s 295.
[6] Ex parte JCR and Others 2022 (5) SA 202 (GP) [23].
[7] Children’s Act 38 of 2005, s 298.
[8] Ex parte WH 2011 (6) SA 514 (GNP) [18].
[9] AB and Another v Minister of Social Development and Others 2016 (4) SA 461 (CC) [45].
[10] Constitution of the Republic of South Africa, 1996, s 24.
[11] KB and Another v Minister of Social Development and Others 2026 (2) SA 151 (CC) [32].
[12] Surrogacy (Regulation) Act, 2021 (India), s 1–3.
[13] S Schoeman, Parenthood via Surrogacy in South Africa (2025) 9.
[14] Core Research Report: Assisted Reproduction in South Africa (2023) 28.
[15] Ex parte SM 2018 (3) SA 123 (GJ) [14].
[16] Children’s Act 38 of 2005, s 41.
[17] Surrogacy (Regulation) Act, 2021 (India), s 1.
