The pitfalls of international surrogacy: A South African family law perspective

Abstract

The main objective of this article is to discuss the legal position which operates if (a) persons who are not domiciled in South Africa obtain a child via surrogacy in this country; and (b) South Africans obtain a child via surrogacy in a foreign country. First, the provisions of the Children’s Act which regulate surrogacy are set out. The discussion focuses on those provisions which could be pertinent in the context of international surrogacy because they dictate the consequences of surrogacy, may encourage South Africans to engage in surrogacy abroad or discourage foreigners from engaging in surrogacy in South Africa, and indicate the South African legislature’s distaste for commercial surrogacy. Then, the consequences of the two instances of international surrogacy identified above are examined. The discussion focuses on family law issues and, in particular, legal parentage of the child from a private law perspective. Some public law matters that are linked to legal parentage are mentioned in brief. In the second-last part of the article possible methods for regulating the identified instances of international surrogacy are considered briefly. As is customary, the article ends with a conclusion.