The feasibility of compensated surrogacy in South Africa: a comparative legal study

Abstract

The following is a study and comparison of the various types of surrogacy currently being implemented locally and internationally and the laws surrounding it. I discuss the current South African legal framework on surrogacy and summarise the relevant legislative provisions whilst also further discussing the provisions prohibiting commercial surrogacy and the reasons behind them. Thereafter an investigation follows into other counties in respect of their individual laws regulating surrogacy and more specifically, commercial surrogacy. I discuss how these countries attempted to regulate commercial surrogacy and which regulations were a success and which weren‘t. The various international laws and regulations surrounding surrogacy as well as commercial surrogacy is then compared and discussed in a South African context. A discussion on the intertwined constitutional rights of the surrogate mother, commissioning parents and child follows and in conclusion I offer some recommendations on how to go about legalising commercial surrogacy safely and successfully implementing it free from exploitation.