ConCourt dashes woman's surrogacy hopes

Published Nov 30, 2016


Pretoria - For parents unable to conceive a child themselves, and hoping to use a surrogate, the Constitutional Court has made an important ruling: the genetic link requirement will remain in place.

This means that, as in the case of in vitro fertilisation (IVF), a genetic lineage is required, with one or other of the parties involved having to contribute sperm or eggs.

For years the statutory requirement was that surrogacy commissioning parents, either one or both, had to contribute their own gametes, and if there is no genetic link with a parent, there could be no surrogacy agreement.

A woman who tried IVF in vain and did not have a partner but found a willing surrogate, approached the Gauteng High Court, Pretoria, last year. It was ruled that the genetic link requirement was against the Constitution.

But, despite the high court ruling in her favour, the highest court in the country had to weigh up and confirm the order. Five justices of the Constitutional Court, however, declined.

Judge Sisi Khampepe, who wrote a 109-page judgment on the subject, concluded that surrogacy had to be regulated by the law, which stipulated that there must be a genetic link - either from one or both a child’s parents.

She started her lengthy judgment by saying “the decision to have a child of one’s own has, for thousands of years formed a central part of the lives of humans.

“It is a blessing that is, for most part, taken for granted. The effects of an inability to carry out that decision (to have a child) have, for so many of us, been nothing short of devastating.”

The judge commented that at the heart of the matter lay the question of the extent to which the State may regulate the reproductive opportunities available to those unable to bear children of their own naturally.

In this case, the woman, only identified as AB, underwent 18 unsuccessful IVFs. She and her husband eventually divorced after 20 years, but she still wanted a child.

She turned to court when she was told that without contributing a gamete to the surrogacy process, this was not an option to her in terms of Section 294 of the Children’s Act. AB said this was unconstitutional as it discriminated against her right to enter into a surrogacy agreement.

The government argued that the law was in place to protect the interests of children. It prevents commercial surrogacy and the commodification of children.

The Centre for Child Law, which entered the debate as a friend of the court, also said the law was there to regulate surrogacy, and that its purpose was to allow a child to know his or her genetic origin.

Judge Khampepe said surrogacy as a concept was not new, referring to the Biblical story of Abram and Sarai (Sarah).

Dealing with AB’s argument that the law discriminated against her and others in her position by stipulating that she did not qualify for surrogacy, the judge said this was not true, as she had other options such as adoption to have a child.

Judge Khampepe emphasised that there was a need for a genetic link between a child and at least one parent. She said clarity regarding the origin of a child was important for the self respect of the child.

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