Chapter 19, Sections 292 to 303, of the Children’s Act 38 of 2005 (the “Act”) regulate surrogacy in South Africa. Section 294 of the Act establish the following:  

“Genetic origin of child. —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.”  

As a result, Section 294 invalidates surrogacy agreements when a commissioning parent does not have a genetic link with the contemplated child. In other words, a surrogacy agreement requires that the commissioning parent or parents provide the gametes or gamete, meaning either of the two generative cells necessary for reproduction. This requirement affected the petitioner, AB, because she could neither biologically give birth to a child, nor donate a viable gamete due to a pre-existing medical condition. Further, she was single and therefore could not rely on a second prospective parent to comply with the genetic link requirement. The only avenue available to her was to obtain gametes from two donors, but this was prohibited under Section 294 of the Act.   

The applicants filed a petition before the High Court of South Africa to challenge the validity of Section 294, on the grounds that the genetic link requirement violated AB’s rights to equality, dignity, reproductive health care, autonomy and privacy.   

The applicants challenged the genetic link requirement for a surrogacy arrangement, recognizing that this requirement was not in place for people utilizing in vitro fertilization (IVF). In fact, AB had previously tried IVF using gametes from two donors (double donor gametes), but when this failed she decided to try surrogacy as an alternative method of conception, only to find that the law did not allow double donor gametes for surrogacy.   

Therefore, the applicants argued that persons who opt for surrogacy should be accorded the same choices as persons who are using IVF. The applicants argued that the regulatory regime on surrogate motherhood must be aligned with constitutional rights and must not be arbitrary, discriminatory, or contrary to human dignity. The applicants also submitted that genetic lineage should not be a relevant factor in conceptualizing families. They argued that families without genetic lineage are just as valuable as families with genetic lineage.   

The South African Minister of Social Development argued that the genetic link requirement should be retained because of its rational purposes, including the best interests of the child, prevention of commodification and trafficking of children, prevention of commercial surrogacy, prevention of exploitation of surrogate mothers, and prevention of circumvention of the adoption law.