- A breeding ground for exploitation of foreign nationals
- Zimbabwean domestic workers recruited as surrogate mothers
Surrogacy remains a largely unfamiliar and complex topic for the average Motswana. Yet, according to the Oxford Constitutional Law website, surrogacy is defined as an arrangement whereby a woman (the surrogate) consents to carry a pregnancy and deliver a child on behalf of another individual or couple (the intended or commissioning parents).
Unlike neighboring South Africa, Botswana lacks any statutory framework or regulatory oversight addressing surrogacy. In essence, surrogacy does not legally exist within Botswana’s jurisdiction. Nevertheless, the practice persists covertly and appears to be relatively widespread. This legal vacuum has created conditions ripe for exploitation, with victims often left without legal recourse or protection. Investigations by Weekend Post have uncovered that Zimbabwean domestic workers are frequently recruited as surrogate mothers under these unregulated circumstances.
A notable surrogacy dispute recently surfaced on Botswana’s Court of Appeal (CoA) docket at the end of August 2025, under the cause of action concerning the ownership of a child. To safeguard the privacy of the minor involved, the identities of the parties have been withheld in this report.
Case Background
An inquiry with Legal Aid Botswana (LAB) revealed that what initially appeared to be a straightforward custody application heard in June 2023 evolved into a multifaceted surrogacy dispute. The presiding judge acknowledged that while the matter was framed as a custody case, “a holistic approach is called for so that the court could at the end of the day determine where the best interests of the child lie.” The court recognized that despite the hierarchical relationship between the Applicant and Respondent, described as master and servant, nothing legally precluded them from entering into a valid surrogacy agreement.
The Applicant alleged that he and his wife, married since 2013, had been unable to conceive. His wife employed the Respondent, a Zimbabwean national, who voluntarily offered to assist by conceiving a child on behalf of the Applicant’s wife after hearing their difficulties.
According to the Applicant, a mutual agreement was reached in August 2021 whereby he commenced sexual relations with the Respondent for the sole purpose of conception. The Respondent became pregnant in November 2021 and gave birth in July 2022. The Applicant asserted that, pursuant to their agreement, the Respondent handed over the child to his wife, after which the Respondent returned to Zimbabwe. When filing the custody application in February 2023, the Applicant claimed they had been raising the child since birth and sought lawful custody.
The Applicant further contended that he was best suited for custody given his stable employment, contrasting with the Respondent’s unemployed status. He expressed concern that the Respondent had threatened to take the child to Zimbabwe, where she lacked the financial means to provide adequate care, potentially exposing the child to hardship.
Conversely, the Respondent maintained that she arrived in Botswana in June 2021 to work as a domestic worker for the Applicant and his wife. She recounted that shortly after starting work, the Applicant’s wife solicited her help to conceive a child on their behalf, promising financial support for the child’s needs. The Respondent insisted that she was to remain the child’s mother and continue living in the household.
The Respondent disputed any agreement to relinquish the child after birth. She expressed shock and distress when the Applicant’s wife took the newborn from her, denying her the opportunity to nurse the child. Subsequently, adoption papers were presented for her signature, which she refused, resulting in her eviction.
Legal Aid Botswana reported the court found compelling evidence that the parties had agreed not only to the conception but also to the transfer of custody to the Applicant and his wife. The court observed that the Respondent’s claim of remaining part of the household was incompatible with the surrogacy arrangement’s nature, noting that her continued presence could destabilize the child’s bonding with the Applicant’s wife.
The court concluded that enforcing the surrogacy agreement was in the best interests of the child. It found the Applicant and his wife suitable parents capable of providing the necessary care and affection. The court also deemed the Respondent’s proposed arrangement self-serving and detrimental to the child’s welfare. In a decisive judgment, the court declared, “I therefore sever the umbilical cord between the Respondent and the child. Henceforth, the child is given to the Applicant and his wife, who will bring him up as their own.”
Legal Aid Botswana and the Respondent filed an appeal against the High Court’s ruling. However, the appeal was not heard before the Court of Appeal in August 2025 due to the Appellant’s unavailability. Efforts to contact the Appellant since September 2023 were unsuccessful. Investigations revealed the Appellant had relocated from Botswana to Zimbabwe and then to South Africa. Given the case’s sensitivity, particularly regarding access and visitation rights, the court removed the matter from the roll, with a view to reinstating it once the Appellant could actively participate. LAB noted that similar cases have been brought before them previously.
The Legal Void on Surrogacy in Botswana: Insights from South African Law
When queried, Principal Public Relations Officer Tshireletso Dichekenyane from the Attorney General’s Chambers confirmed that Botswana currently lacks any legal definition or regulation relating to surrogacy. “The attorney general’s chambers are not aware of any plans to introduce such legislation in the future,” she stated.
By contrast, surrogacy is legally regulated in neighboring South Africa under the Children’s Act, which outlines strict procedures and conditions to ensure legality. According to Legal Wise South Africa, surrogacy is an option when a couple is medically unable to conceive or carry a child due to a permanent and irreversible condition.
South African law defines surrogacy as a voluntary agreement where a woman consents to be artificially inseminated to bear a child on behalf of another person or couple, referred to as commissioning parents. For legality, all parties must enter into a written surrogate motherhood agreement, which must be confirmed by the High Court in the jurisdiction of the commissioning parents.
Legal Wise clarifies that surrogates hold no parental rights or responsibilities, cannot retain custody, nor reclaim the child. While a surrogate may terminate her pregnancy under the Choice of Termination of Pregnancy Act, she must consult the commissioning parents beforehand. Importantly, surrogacy must be voluntary, and surrogates cannot receive payments or gifts intended to coerce them. Commissioning parents may cover pregnancy-related expenses.
Calls from Civil Society for Surrogacy Legislation to Protect Women and Children
Dumi Gatsha, Director of Success Capital, frames surrogacy within the broader sexual reproductive health and rights (SRHR) discourse in Botswana. Gatsha argues that the existing narrow policy landscape creates significant barriers for women and girls. “Like many SRHR issues—abortion, family planning, C-section—surrogacy remains an issue of affordability,” Gatsha explained. “Those with means have the power of choice and access, whilst those without bear the brunt and consequences—poor recovery, lack of support, criminalisation—for trying to make those choices. We have seen this with some members of our community who have had the privilege to parent because they can afford it.”
Gatsha further highlighted challenges surrounding bodily autonomy and integrity for surrogates, noting the absence of legal provisions governing ethics, care, and support pre-, during, and post-pregnancy. The lack of frameworks also restricts access to IVF, adoption, and legal instruments like power of attorney, which are crucial when termination may be necessary for the health of the baby or mother.
“There is stigma, discrimination, and misconceptions about surrogacy as a family planning option precisely because the government does not provide guidelines, processes, policy, information, support systems, or jurisprudence,” Gatsha lamented. “It remains a privilege, rarely accessible to those from poorer backgrounds due to the stigma attached to bearing children while living in poverty. As a democracy, the state should provide clear guidance and equitable access to all Batswana, especially given its commitments to universal health coverage.”
Desmond Lunga, Team Leader of Men to Boys for Gender Equality in Botswana, echoed the call for policy reform. He emphasized that the best interests of the child must remain paramount, in line with the Children’s Act, which affirms the child’s right to know both biological parents. “There is a need for policy change and to address gaps in existing frameworks to prevent hazardous situations and ensure such incidents do not recur,” Lunga stated.
