Surrogacy in South Africa: what Australians should know

South Africa might seem like an obvious overseas surrogacy destination for Australians. It has high-quality IVF services, costs can be lower than in some other international destinations, and Australia has a substantial South African community, particularly in Perth, Sydney, Melbourne and South East Queensland.

Yet South Africa is not an option for most Australian intended parents. There is one major legal catch: intended parents must be domiciled in South Africa to undertake a surrogacy arrangement there.

Domicile is more than a holiday, a temporary visit or even a connection with the country. It is a legal concept tied to a person’s permanent home. In practical terms, people seeking surrogacy in South Africa need to be prepared to live there and establish South Africa as their home.

That requirement makes South Africa a potentially suitable destination for a relatively small group, most notably members of the South African diaspora who have migrated to Australia and are willing to return for their surrogacy journey.

Domicile Is the First and Biggest Hurdle

South African surrogacy law does not operate on the basis that an overseas intended parent can simply fly in, make an arrangement, and leave with a baby. The intended parent or parents must be domiciled in South Africa before the process can lawfully proceed.

This is a critical distinction. A person may be a South African citizen, have been born in South Africa, have family there, or visit regularly, but still not satisfy the legal test for domicile if Australia remains their permanent home.

For those who do meet the requirement, South Africa can be a viable pathway. Some intended parents have returned to South Africa for the duration of their journey, then either remained there or returned to Australia with their child. Finding a surrogate can take time, as it can anywhere, but surrogates are available.

South African surrogacy must be altruistic. It is not a commercial surrogacy model. That is familiar territory for Australians, because commercial surrogacy is prohibited across Australia, although the exact legal framework varies between states and territories.

A Different Model: Court Approval Before Conception

The most striking feature of South African surrogacy law is the timing of the court process.

In Australia, the child is born first. The intended parents then apply to a court for a parentage order, commonly called a transfer of parentage order. This post-birth process can be a significant source of stress, particularly where there has been a failure to comply with the relevant state or territory requirements.

South Africa takes the opposite approach. The intended parents and surrogate must obtain a pre-conception court order.

This means court approval is required before an embryo is created for the arrangement or transferred to the surrogate. The court considers the proposed arrangement at the beginning, rather than leaving the legal parentage issue until after the child is born.

If the process is approved and the child is born under that arrangement, the intended parent or parents are recognised as the child’s parents in South Africa from birth.

That front-end court process is one reason South Africa can offer a clearer parental status outcome for people who are genuinely domiciled there. It also illustrates why there is no room for shortcuts. The legal work needs to be done properly before medical treatment begins.

Who Can Access Surrogacy in South Africa?

Subject to the domicile requirement and the court approval process, South Africa does not discriminate on the basis of sexuality or relationship status. Surrogacy may be available to:

• Single intended parents
• Heterosexual couples
• Same-sex couples

However, there is an important requirement: at least one intended parent must have a genetic link with the child.

That genetic connection is central to the South African model. It also becomes highly relevant when the family later applies for Australian citizenship by descent and an Australian passport for the child.

Recognition of Parentage in Australia

For Australian intended parents, the question does not end with a South African court order or birth certificate. The family must also navigate Australian family law, citizenship law and passport requirements before bringing their child to Australia.

The encouraging point is that Australian family law has recognised the importance of legal parentage established in South Africa. Since 2013, the Family Court has indicated that where people are living in South Africa and are recognised there as the child’s parents, they can be recognised as parents under the Family Law Act 1975.

Further changes commenced on 1 April 2025 under the Family Law Regulations. South Africa is among the countries for which a birth certificate recording the intended parent or parents may give rise to a presumption of parentage under Australian family law.

This is an important development, but it should not be treated as an automatic solution to every issue. Parentage, citizenship and passports are related questions, but they are not always decided by the same agency under the same legal test.

There is also a special caution for unmarried intended parents in Western Australia. Western Australia has its own distinct parentage provisions and history. Different rules may apply in that circumstance. Married parents are generally in a stronger position because the Family Law Act applies to children of a marriage.

Australian Citizenship by Descent and DNA Testing

A child born through a South African surrogacy arrangement may be eligible for Australian citizenship by descent where the relevant legal requirements are met. The Department of Home Affairs citizenship by descent process is therefore a crucial part of planning the journey home.

Even where the South African court order is in place and the birth certificate identifies the intended parent or parents, a Department of Home Affairs delegate may still seek further proof of parentage. In particular, the delegate may request DNA evidence establishing the genetic connection between an Australian parent and the child.

A DNA test is not necessarily compulsory. However, where the department requests it, obtaining a properly arranged test is usually sensible. It can provide clear evidence of the genetic link required under the South African arrangement and help address questions raised in the citizenship application.

Once citizenship has been obtained, the next practical step is usually an Australian passport application. Families dealing with an overseas birth should plan for the citizenship and passport stages early, rather than assuming a South African birth certificate alone will resolve every Australian administrative requirement. There is further information about the practical passport issues that can arise in this guide to surrogacy and passports.

Why Early Legal Advice Matters

Surrogacy is the most legally complex form of reproduction. International surrogacy adds another layer of complexity because the arrangement has to work across two legal systems, as well as medical, immigration, citizenship and travel processes.

The right time for Australian legal advice is before committing to the arrangement, not after an embryo transfer, a birth, or a citizenship problem. Prevention is better than cure. The builders of the Leaning Tower of Pisa would have benefited from getting the foundations right at the outset.

For a South African journey, intended parents need advice in both countries. South African lawyers can advise on domicile, the pre-conception court process and local compliance. Australian lawyers can advise on the consequences at home, including parentage recognition, citizenship, DNA evidence, passports and any state-based issues that may apply.

The core planning questions include:

• Can the intended parent or parents genuinely establish domicile in South Africa?
• Will at least one intended parent have the required genetic link?
• Has the South African court approval process been completed before conception?
• What evidence will be needed for Australian citizenship by descent?
• Will DNA testing be appropriate or likely to be requested?
• Are there any additional issues because of the intended parents’ marital status or home state?

Is South Africa the Right Destination?

For most Australians, the answer will be no. The domicile requirement is a real and substantial barrier, not a minor administrative formality.

But for intended parents with a genuine South African connection who are prepared to live there, South Africa may be a carefully regulated and workable option. Its pre-conception court order model provides legal clarity from the beginning, and its laws permit access for singles and couples regardless of sexuality or relationship status, provided the legal requirements are met.

The key is to approach the journey with proper preparation. International surrogacy should never be treated as a simple overseas medical arrangement. It is a family-building process with legal consequences that must be understood from the very first step.

About Stephen Page

Stephen Page is one of Australia’s leading surrogacy lawyers, a multi-award-winning accredited family law specialist, and a principal at Page Provan Family & Fertility Lawyers. He has extensive experience advising intended parents on Australian and international surrogacy, parentage, citizenship and passport issues. For tailored advice about a proposed South African or overseas surrogacy arrangement, contact Page Provan Family & Fertility Lawyers.