Frequently asked questions

What is meant with a right to make decisions concerning reproduction?

  • Section 12 of the Constitution grants everyone the right to freedom and security of the person. It further states that everyone has the right to bodily and physical integrity, which includes the right to make decisions concerning reproduction.
  • The right to make decisions concerning reproduction is afforded to persons of all genders, but has the following unique consequences that may only be applicable to women:
  • a woman is free to decide whether she wants to have children or not and should not be discriminated against based on her decision;
  • a pregnant woman can voluntarily terminate her pregnancy for any reason up to the twelfth week of pregnancy, in terms of the Choice on Termination of Pregnancy Act; and
  • a pregnant woman is entitled to maternity leave and employers are not permitted to unreasonably refuse to grant such leave.

Is surrogacy legal in South Africa?

  • In the event a couple is unable to conceive and/or give birth to a child due to a medical condition that is permanent and irreversible, they may consider surrogacy.
  • Surrogacy is where a woman (“surrogate”) voluntary undertakes to be artificially inseminated in order to bear and give birth to a child on behalf of another person or couple, also known as the commissioning parent/s.
  • Surrogacy is strictly regulated by the Children’s Act, which sets out the procedure and requirements for surrogacy to ensure that it is legal.
  • In order for surrogacy to be legal, all parties concerned must enter into a written surrogate motherhood agreement that must be confirmed by the High Court within whose area of jurisdiction the commissioning parent/s are domiciled or habitually resident. 
  • A surrogate has no parental rights and responsibilities over the child and cannot keep the child or take him/her back in the future.
  • A surrogate may terminate her pregnancy in terms of the Choice of Termination of Pregnancy Act. However, the surrogate must inform and consult the commissioning parent/s of her decision to terminate the pregnancy before the termination is carried out.
  • Surrogacy is voluntary and a surrogate is not allowed to receive payment or gifts with the intention of coercing her to become a surrogate. The commissioning parent/s may pay for expenses during the pregnancy.

Should a woman always take her husband’s last name upon marriage?

  • It is not a legal requirement for a woman to change her last name to her husband’s once they get married.
  • Although it is generally required to apply at the Department of Home Affairs to change a surname, no application is necessary in the following circumstances:
  • where a woman assumes the surname of her husband;
  • where a divorced woman or a widow, resumes any surname she had previously, such as her maiden name;
  • where a woman adds another surname to her current surname after marriage, such as a double-barrelled surname.
  • If a woman decides to assume a different surname in one of the abovementioned circumstances, she must still notify the Department of Home Affairs in writing of same to update the population register.

Is polyandry legal in South African law?

  • Polyandry refers to instances where a woman has more than one husband at the same time.
  • It is not legal in South Africa at the moment. However, the Department of Home Affairs gazetted a new green paper for the Marriage Act, proposing that polyandry be recognised.
  • One of the reasons why this proposal was put forward, was because South African law currently recongnises polygamy (where a man can have more than one wife at the same time).
  • The South African Government is working on making the institution of marriage more inclusive, hence the proposed polyandry legislation.
  • If the proposal is signed off and becomes legal, this will show that the Government acknowledges that everyone in the country is equal no matter their gender.

Did you know…

Surrogacy is legal in South Africa and is a viable option for couples and single persons who cannot have their own children.