When moral outrage determines a legal response: Surrogacy as labour

Authors Caroline Nicholson

ISSN: 1996-2126
Affiliations: Department of Jurisprudence, Faculty of Law, University of Pretoria
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 496 – 514


Surrogacy is a complex issue that evokes a strong moralistic response. In South Africa, commercial surrogacy is illegal and surrogacy agreements that contain financial incentives beyond expenses associated with the pregnancy and birth are unenforceable. Despite this, commercial surrogacy appears to remain a reality in South Africa. Further, given the pervasive poverty that exists in the country, the question arises, should commercial surrogacy be permitted as a means to alleviate the dire circumstances of poverty-stricken women and those dependent on them. I seek to answer this question by taking a close look at the nature of surrogacy, some of the arguments for and against it, and the Indian model of commercial surrogacy as a potential model for commercial surrogacy in South Africa.