The Applicants in this matter, a single divorced woman who was both pregnancy-infertile and conception-infertile and the Surrogacy Advisory Group (a national organization comprising professionals and volunteers who assist and advise parents wishing to engage in surrogacy undertakings) challenged the constitutional validity of the provisions of section 294 of the Children’s Act 38 of 2005. The section in question reads as follows:


No surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parent or, where a commissioning parent is a single person, the gametes of that person.


The Applicants argued that the genetic link requirement violated a person’s right to equality, dignity, reproductive health care, autonomy and privacy. They submitted that while there may be some who would prefer to use their own gametes in order to establish a genetic link with a child, there was no justification for the limitation of surrogacy arrangements to genetic relationships only, especially as this limitation did not exist in the context of general IVF matters.


The Court having regard to the recent Constitutional Court judgment of Satchwell v President of the Republic of South Africa & Another 2002 (6) SA 1 (CC) wherein it was held that “Family means different things to different people, and the failure to adopt the traditional form of marriage may stem from a multiplicity of reasons – all of them equally valid and all of them equally worthy of concern, respect, consideration, and protection under the law” confirmed that the concept of family is not limited to nor defined by the existence of a genetic link between a parent and a child and that our society does not regard a family consisting of an adopted child or adopted children as less valuable or less equal than a family where children are natural or the genetically linked children of the parents.


Additionally, the Court held that the surrogacy genetic link requirement is discriminatory in that it prevents a conception-infertile party alternatively commissioning parents who are both conception-infertile from accessing surrogacy as a reproductive avenue.  This likewise infringes upon their human dignity in that this both prohibits the conception-infertile person from exercising his or her right to autonomy but also exacerbates the profoundly negative psychological effects which infertility can have on a person.


Having regard to the Regulations Relating to Artificial Fertilisation of Persons (2012), the Court noted that by nature of surrogacy arrangements, the Regulations form an integral part of the surrogacy regulatory framework. Further that the Regulations specifically allow a recipient who is undergoing an artificial fertilization procedure to exercise choice in respect of the gamete donor – that is the recipient has the right to choose gametes from a person who is from a particular population group or from a particular religion as well as gametes from both a male and female donor.  The Court held that there was “ no justification for the fact that in law a differentiation is drawn between IVF procedures and surrogacy especially in light of the fact that both procedures have at its primary aim allowing infertile people to become parents “.


The Court rejected the argument that put forward by the Respondents that the child’s constitutional rights guaranteed in terms of section 28(2) of the Constitution would be compromised if the genetic link requirement was removed from the Surrogacy Legislation.


Briefly, the Respondents argument in this regard centered on  (i) information relating to the child’s genetic origin and conception would be withheld from the child ; (ii) the child’s right to dignity would be compromised in that the child would be the subject of an agreement created for a specific requirement and “bought and sold to the highest bidder”; and (iii) in the absence of a genetic link, a child born with a disability may well become abandoned.


The Court stated that it had several difficulties with the aforesaid arguments and found having regard to expert report before it that on (i) there is no persuasive evidence before it that information relating to a child’s genetic origin is necessarily in the child’s best interests; on (ii) that surrogacy motherhood agreements are recognized in our law and the mere fact that there is a double gamete donor should not in law make any difference to the surrogacy arrangement particularly as the Court is called upon to scrutinize the agreement prior to confirming the same and that submitting that the child can be bought and sold to the highest bigger is inappropriate and devoid of any substance; on (iii) there is no substance to this submission.


The Court noted that “ the aim for regulating surrogacy was to allow commissioning parents including a single parent to have a child.  Requiring that a genetic link should exist between the parent(s) and the child in the context of surrogacy whereas such a requirement is not set in the context of IVF defeats the purpose and in the absence of a legitimate governmental purpose should be struck down”.


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