Family Law – Surrogate Cannot Carry Baby Without the Genes of One Parent

By Kate Oosthuizen, Partner in the Child & Family Law department

Assisted reproduction is still a relatively new area of medicine so the legal environment is also still evolving. A Constitutional Court case from last year highlights some of the difficulties that come with unpacking reproductive legalities.

In 2016, the Constitutional Court ruled on the matter of AB and Another v Minister of Social Development, which dealt with a surrogate motherhood agreement and the statutory genetic origin requirement and whether it limits commissioning parents’ rights to equality, dignity, reproductive autonomy, reproductive health care and privacy. The genetic origin requirement can be found in section 294 of the Children’s Act No. 38 of 2005 (“the Children’s Act”), and this case centred around an application for confirmation of a High Court order that declared section 294 unconstitutional.

Section 294 states that:

“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 parents or, where the commissioning parent is a single person, the gamete of that person.”

In the matter before the Court, an infertile woman wanted to ask a surrogate to carry a baby for her, since she is medically unable to use her own eggs or to donate sperm from a spouse or sexual partner. Between 2001 and 2011, she underwent 18 unsuccessful IVF cycles. In the first two‚ she used her own eggs and her then husband’s sperm. After she could no longer harvest her own eggs‚ she used anonymous donor eggs and the sperm from her then husband. Twice, the IVF treatments resulted in pregnancy, but they ended in miscarriages. She was finally advised to consider surrogacy but then informed that she could not legally enter into a surrogacy agreement due to the limitation set out in section 294 of the Children’s Act.

In coming to a judgment in this case, the Constitutional Court had to grapple with fundamental issues including the rights of the child and the natural bond between a parent and child. In the end, the Constitutional Court overruled the High Court order declaring section 294 unconstitutional, and upheld that at least one parent must donate sperm or eggs for a surrogacy agreement to be legal. In the majority judgment‚ Justice Bess Nkabinde said the requirement of donor gametes within the context of surrogacy served a rational purpose of creating a bond between the child and the commissioning parents or parent. The Court found that the differentiation between the genetic link requirement in section 294 of the Children’s Act and the IVF regulations is rational. The requirement of donor gamete/s within the context of surrogacy indeed served a rational purpose of creating a bond between the child and the commissioning parents or parent. The Court also held in terms of section 9(3), that the impugned provision did not disqualify commissioning parents because they are infertile – it afforded infertile commissioning parents the opportunity to have children of their own by contributing gametes for the conception of the child. But if that parent cannot contribute a gamete, the parent still had available options afforded by the law. The majority traced the scope of the right in section 12(2)(a) of the Constitution, and held that the focus of the right to reproductive autonomy is on the individual woman’s own body and not the body of another woman.

The minority held that the limitation was not reasonable and justifiable. It found that the provision did not prevent the proliferation of “designer babies”, nor did it guard against the commercialisation of surrogacy. In a minority judgment‚ Justice Sisi Khampepe said section 294 of the Act violated the right to make decisions concerning reproduction and the right to equality. The minority judgment also found that as the best interests of the child was a flexible standard, it cannot always be the case that it was better for a child to have never been born, than to be born without a “genetic link” to one of its parents.

For more information on the above contact:

Kate Oosthuizen
Partner in the Child & Family Law department
koosthuizen@wylie.co.za