In South Africa, One Intended Parent Must Have Genetic Link with Embryos used in their Surrogacy Arrangement

In South Africa, one of the Intended Parents must contribute genetic material to create embryos to use in a Surrogacy arrangement.


Would-be parents must share some genetic link with the child if they want to use a surrogate mother, the Constitutional Court has confirmed.

In November last year, the Constitutional Court had to make a decision on whether infertile would-be parents could enter into surrogacy agreements, specifically where the child would have no genetic link to either parent.

AB, the applicant in the case, was unable to have a child because she was infertile and unable to produce ova. However, she wanted to have a baby and chose to proceed using a surrogate. Due to the nature of her infertility, AB needed to use a donor ovum as well as have the surrogate carry the child. AB was divorced at this time.

In order to have a child, AB would have had to use both donated sperm and donated ova for the surrogacy. Consequently, the child would share no DNA with her.

AB found a surrogate willing to carry the child but then discovered that she could not enter into a surrogacy agreement, because section 294 of the Children’s Act does not allow surrogacy contracts unless at least one of the prospective parents has contributed a gamete to the surrogacy process. Gametes are the male or female reproductive cells – the sperm cell and the ovum – that contain genetic material.

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