On Monday, 24 March 2025, I was a panellist at the Third International Surrogacy Forum, held in Cape Town. Here is my speech:
Good morning, esteemed colleagues, scholars, and guests,
It is an honour to address you today as a litigator immersed in surrogacy—a field where law, ethics, and human rights intersect, often uneasily. Building on the insightful foundation laid by my co-presenter, I want to highlight a growing concern: the steady erosion of reproductive autonomy—disguised as protection—that has unfolded in the fifteen years since our current surrogacy framework was enacted.
My co-presenter has already outlined the statutory framework, so I’ll revisit it only briefly. As you know, the Children’s Act imposes stringent requirements: all parties must be domiciled in South Africa; the commissioning parents must be unable to carry a pregnancy; the arrangement must be altruistic—no compensation beyond expenses; and commissioning parents must use their own gametes. These conditions are unusually rigid when compared to other reproductive options. Yet, these legislative requirements are merely the starting point. What has emerged from judicial practice since then is a far more elaborate and exclusionary system.
Over the past decade, the courts have built substantially on the Act’s foundation—sometimes, I would argue, too substantially. Let me be clear: I have deep respect for our judiciary, including my colleague here from the Western Cape High Court. Judges tasked with deciding these cases strive for fairness and compassion. My concern is not with their intentions, but with the cumulative effect of these judicial expansions. They have created what I would call hyper-regulation—a regime so procedural, so demanding, that it places surrogacy far beyond the reach of many.
Consider the current practice: exhaustive psychological assessments that require parties to recount their entire life histories, layered with psychometric tests that seem barely connected to parenting capacity. Detailed financial disclosures that demand transparency beyond what most people could tolerate. And in the Western Cape, a mandatory detour through the Office of the Family Advocate. None of these steps are required by the Children’s Act. They were introduced by the courts, in the name of protection. Viewed individually, each requirement may appear reasonable—even prudent. But taken together, they form a mountain of procedural and financial hurdles. The process is not just burdensome; it is exclusionary.
Why does this matter—really matter? Because at its core, surrogacy is about reproductive autonomy, a right intimately tied to dignity, freedom, and equality under our Constitution. Yet both the legislature and the judiciary have embraced the view that it is justifiable—perhaps even necessary—to wrap this right in red tape. For individuals who must turn to surrogacy to build a family, these restrictions don’t merely complicate the process; they marginalise them. They send a message: your reproductive choices are suspect, your decisions require greater oversight than those of fertile couples conceiving naturally. In an open, democratic society, that message should trouble us all.
Of course, surrogacy is not natural reproduction. The involvement of a third party—the surrogate—introduces legitimate concerns about exploitation. A legal framework that brings structure, certainty, and protection is warranted. But South Africa’s approach does more than that. It elevates the best interests of the child—a child who does not yet exist—as the ultimate measure of legality. Unlike any other form of reproduction, surrogacy gives judges the power to override the autonomous decisions of consenting adults based on speculative assessments of a hypothetical child’s future.
And if we are comfortable applying that standard here, why stop with surrogacy? Why not apply the same test to natural conception? Why not require psychological evaluations, financial stability checks, or even court approval before anyone is allowed to have a baby the old-fashioned way? The answer is simple: we don’t—and we wouldn’t dare. So why is it acceptable to subject a small, vulnerable group of people—infertile individuals—to this level of scrutiny and control?
Let me pause to acknowledge the obvious question: am I suggesting that the best interests of the future child don’t matter? Of course not. They do. But they cannot be the decisive factor in determining access to surrogacy when no such test exists for others. This is not a minor legal inconsistency—it is a profound issue of equality. We are singling out a minority and holding them to a standard we would never apply universally. And let’s be honest: it’s easier to do that when the group in question is small, marginalised, and lacks political power.
The result? A process so complex, so costly, and so protracted that it is inaccessible to most. Who is actually able to pursue surrogacy under this regime? Spoiler alert: it’s not the average South African. To navigate this system, you need time, money, and legal sophistication. The framework has become a gatekeeping mechanism that excludes the very people it was meant to support.
Yes, we must protect all parties involved—surrogates from exploitation, commissioning parents from disappointment, and children from harm. But our current system fails to strike a balance between protection and accessibility. It sacrifices the latter at the altar of the former. And that is a constitutional failure. Because access to reproductive healthcare—including surrogacy—is not supposed to be a privilege reserved for the wealthy. It is a right.
So, where do we go from here? South Africa’s surrogacy laws have shifted from cautious over-regulation to full-blown hyper-regulation. It’s time for serious reform—not just tweaks around the edges, but a substantial overhaul. We need to simplify the process. We need to cut the procedural fat. We need to lower the financial and administrative barriers that currently lock so many people out.
Can we protect all parties while also making surrogacy genuinely accessible? I believe we can—and we must. Because if we don’t, we are not just failing infertile individuals or willing surrogates. We are failing the constitutional promise of dignity, freedom, and equality.
Let me leave you with a question: If we’re willing to recalibrate rights based on the interests of a child who doesn’t yet exist, how do we justify doing it only in the context of surrogacy? And if we can’t answer that without tying ourselves in knots, then perhaps it’s time to admit we’ve got the balance wrong—and start fixing it.
Donrich Thaldar 