Divorced single women who cannot fall pregnant or conceive children through in vitro fertilisation (IVF) have been offered hope to become mothers via a landmark court decision.
This follows a successful challenge to the law governing surrogacy, by a woman known only as AB.
The woman, supported by the Surrogacy Advisory Group, said the law was discriminatory and violated her rights to choose surrogacy as her only option (apart from adoption and its bureaucratic red tape) to become a mother.
The Pretoria High Court ordered the ministry of social development to pay the costs of the action.
In a watershed judgment, Judge AC Basson ruled that the legislation was unfair and violated the rights, privacy and dignity of the woman, who had made 18 unsuccessful IVF attempts to have a baby.
The judge said it was not necessary to strike down the whole portion of the act governing surrogacy because the court found that only the genetic link requirement in the law was unconstitutional and invalid.
It is standard procedure in South Africa that all surrogacy agreements are sanctioned by the high court before the medical procedures begin.
Judge Basson said if the commissioning parents, or as in this case, a single person, are therefore biologically or medically unable to use their own gametes, the agreement would be invalid and the commissioning parents were legally prohibited from proceeding with surrogacy.
Judge Basson said in the factual matrix of this case the genetic link requirement effectively made it impossible for the applicant (AB) to conclude a surrogacy agreement.
“Because of the flawed law, she had just one option left – adoption. Adoption is a cumbersome and a time-consuming process. There is no certainty that an adoption application will be approved, even after years of waiting.”
The judge said it was clear that AB could not donate her own gametes.
“Her medical condition is permanent and irreversible. In 14 of the 18 IVF cycles, both male and female anonymous donor gametes were used.
“In other words, in the context of IVF, she made use of double donors to become pregnant.
“It is evident from her gynaecologist’s affidavit that she cannot contribute her own gametes for conception.”
The applicant said she was shocked, saddened and baffled when she was informed that she could not be considered for surrogacy because she could not provide the gametes.
She was puzzled because she had used double donors for years when attempting IVF.
“She believed the law was unfair and discriminated against single divorced women like herself,” said Judge Basson.
The judge gave the ministry of social development a tongue lashing for not co-operating with the applicant as far as the adoption report was concerned.
“The contents of the report were of considerable importance in this case.”
The ministry had commissioned the Human Sciences Research Council to compile the report. The respondent had also informed AB that it would only hand over the report if directed to do so by a court order.
“What is concerning is the contradictory statements given by the respondent’s department about the report.”
Judge Basson said the respondent had failed to convince the court that the law did not discriminate against the woman.
“It was submitted on behalf of the respondent that the IVF and surrogacy procedures are different and therefore not comparable.
“It was further submitted that in the event of double donor gametes, the surrogate mother merely provides her womb for hire, and that to allow the commissioning of a child with no genetic link to the commissioning parent is tantamount to the creation of a new form of adoption by the commissioning parent,” the judge said.
“While the procedures involved are different, I don’t agree with the respondent’s submissions.
“The womb for hire claim is fundamentally wrong. Section 295 (c) (iv) of the act specifically outlaws using surrogacy as a source of income.
“The submission that surrogacy will circumvent the existing laws for adoption is groundless.
“This submission is without merit, since the respondent conceded that adoption for AB is not a viable option.”