Two men and a baby: Having a child through surrogacy in South Africa

Gay couples have the option of surrogacy in South Africa

Same-sex couples have legal access to surrogacy in South Africa but a court must approve any surrogacy agreement

Becoming a parent is a big decision and one that seemed like a distant dream to many in the LGBTQI+ community before the enactment of the Civil Union law in 2006. Since South Africa made this huge leap in human rights, more gay couples are starting families of their own.

Some couples are turning to surrogacy to start their family. While some may feel that surrogacy is tricky to navigate, it turns out that South African law is reasonably straightforward about what couples can and can’t do.

“The law doesn’t discriminate against single people or those who are in committed relationships. It is also supportive when it comes to gay male couples,” says Robynne Friedman, an attorney and surrogacy law specialist from Johannesburg.

South African law does, however, prevent women from offering surrogacy services for their own financial benefit or profit. The person offering to carry a child for someone else must be doing so for altruistic reasons.

The reasoning behind this is to ensure that people are not pursuing surrogacy for the “wrong” reasons, such as a women possibly choosing to have a child this way so they can continue to grow their careers and not be tied down by the challenges that come with being pregnant.

Surrogacy in South Africa is more complicated for lesbian couples

In South Africa, the would-be parents need to have a written agreement with the surrogate mother. This agreement needs to be approved by and be made an order of the High Court. The process does involve considerable medical and legal costs which means that not everyone may be able to afford surrogacy.

The people who use the services of a surrogate are also liable for medical costs and costs directly related to the pregnancy. This would include medical aid, pregnancy vitamins, maternity wear, life assurance and coverage of any expected loss of income during the pregnancy.

Seems quite straightforward. So, what’s the catch? “The thing is that a lesbian couple or a single woman will face more challenges,” says Friedman. “They would have to demonstrate that there is a medical reason that both women can’t carry a child if they are a couple. The same would apply to a single woman. In men, the medical reason is assumed – a man doesn’t have a womb.”

Medical reasons for women could include hysterectomy, cancer treatments or medications that may harm the baby. Although more difficult to prove, psychological conditions may also be considered. The woman would, however, need to prove that the medical condition is both permanent and irreversible.

Does this mean that there is absolutely no hope for women to have a baby via pregnancy? Not necessarily. It just means that women have a few more hoops to jump through.

Single parents would also need to donate their own genetic material to the creation of an embryo. They are not permitted to use a donor.

Since 2006, there has been a dramatic increase in gay couples seeking surrogacy

In the case of a male couple, the genetic material of one of the men needs to be used in fertilisation. The temptation may be to inseminate the surrogate with gametes containing genetic material from each parent. This, however, is illegal in South Africa.

“The couple need to state upfront whose genetic material is being used in the fertilisation process,” explains Friedman. “What the couple can do is freeze embryos for later use, or, if the insemination doesn’t result in pregnancy in one cycle, they can use the genetic material of the other partner in the next cycle.”

People with HIV are also able to take the surrogacy route. They still have to supply genetic material and there are conditions attached. The person involved needs to have an undetectable viral load, have no illness nor any signs of infection.

Evidence also needs to be put to court as to how removing HIV from genetic material is done along with any controls in place to prevent transmission to the mother.

“Since the civil union law change in 2006, there has been a dramatic increase in gay couples seeking surrogacy in South Africa in order to start a family,” says Friedman. “Currently, I see a fifty-fifty split between gay and straight couples wanting to get pregnant via surrogacy.”

Of course, there are many things to consider before having children, however, it is a relief to many would-be parents to know that there are options available to them.

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