Pretoria - In a legal victory for parents unable to contribute their own sperm and eggs for the conception of a child, the high court in Pretoria overturned the so-called genetic link requirement for surrogacy.
This means that neither party need to contribute a gamete, and as in the case of in vitro fertilisation (IVF), no genetic lineage is required.
Up until now, the statutory requirement was that surrogacy commissioning parents had to contribute their own gametes - either both of them or at least one of them.
In the case of IVF, no genetic link was required.
But as the law stood on surrogacy, certain potential parents were excluded if neither of them could make a genetic contribution to the conception. If there was no genetic link, there could be no surrogacy agreement.
But Judge Anneli Basson, in a groundbreaking judgment, found this was against the Constitution which protected human rights.
The judgment followed an application by a woman who tried IVF - in vain - and as she does not have a partner or cannot contribute an egg herself, surrogacy was not an option as she did not qualify. This was despite a surrogate mother agreeing to carry the baby for her. The application was brought against the social development minister, with the Centre for Child Law in Pretoria joining in as a friend of the court.
The applicant said as the law now stood, a single infertile person was legally forbidden to use surrogacy as a means to become a parent.
The minister, on the other hand, said genetic lineage was relevant in defending the concept of a family.
But Judge Basson said: “A family cannot be defined with reference to the question whether a genetic link between the parent and the child exists. Our society does not regard a family consisting of an adopted child as less valuable or less equal than a family where children are the natural or genetically linked children of the parents. A family can therefore not be defined by genetic lineage.”
The Surrogacy Advisory Group, which assisted the applicant, hailed the judgment as groundbreaking.
“Surrogacy is a wonderful gift that a woman can give another couple that cannot carry a pregnancy themselves. We are delighted that the court has taken the stance to protect infertile people from discriminatory legislation,” Robynne Friedman, chief adviser of the group said.
The matter will, however, have to be tested in the Constitutional Court, which will have the last word on this legislation.