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.
The Court first identified the class and subclass of persons affected by Section 294 of the Act. It described the “class” as comprising parents who are medically or biologically unable to carry a child (i.e. pregnancy-infertile). Parents in this class could generally still contribute their gametes or gamete to conception; however, a subclass of this group contains people who are biologically unable to contribute their gametes or gamete. These individuals are conception-infertile and are affected by the genetic link requirement.
The Court also recognized that some persons who are pregnancy-infertile but could provide gametes or a gamete for conception might not want to do so for reasons such as to avoid passing on a genetic trait. These too would be barred by the genetic requirement link if they opted for surrogacy through double donor gametes.
The Court reviewed the historical background on the development of the law, and found that the rationale for requiring a genetic link, as stated in the 1992 report of the South African Law Commission (the “SALC”), was because surrogacy was viewed as an opportunity for persons who could not themselves give birth to have genetically linked children and therefore, to promote the bond between parent and child, this being in the best interests of the child. Further, it would prevent shopping around with the view to creating children with particular characteristics. A further inquiry revealed that a report of a Parliamentary Ad Hoc Committee of 1999 had recommended that the genetic requirement be retained; otherwise the situation would be similar to adoption.
The Court acknowledged that legislation takes awareness of and integrates constantly evolving social norms and practices. It also observed that the SALC recognized the right of persons to make certain decisions about reproduction and that it considered a limitation on these rights as a violation of the person’s dignity and privacy.
The Court examined the legislative intent of Chapter 19 of the Act and recognized that it was aimed to better regulate surrogacy, ensure sufficient protection of the rights and interests of the parties to surrogacy arrangements, and enable commissioning parents to acquire parental rights without going through an adoption process (See Ex Parte MS and Others, 2014 (3) SA 415, High Court of South Africa).
The Court then established that family should not be defined with reference to whether there is a genetic link between the parents and children of families. Although family meant different things to different people, all of the meanings are equally valid, following the South African Constitutional Court in Satchwell v. President of the Republic of South Africa and Another (2002 (6) SA 1 CC).
Moreover, the Court examined legislation from other jurisdictions, recognizing the various perspectives in regulating surrogacy. The Court recognized that there needed to be a rational connection between measures that the government takes, including legislative measures, and a legitimate governmental purpose; otherwise, such measures would be found unconstitutional (See National Party v. Government of the Republic of South Africa and Others (1999 (3) SA 191 (CC)). Consequently, the Court put the requirement of the genetic link to this test, taking into account the arguments of the parties in the case.
The Court stressed autonomy as a value to be taken into account in determining the validity of a law, evaluating that the genetic link requirement caused a class or sub-class of people to be treated differentially and excluded them from enjoying equal protection and benefit of the law. The Court pointed out that Section 9(1) of the Constitution provides that everyone is equal before the law and should enjoy equal protection and benefit of the law. Also, the right of equality plays a fundamental role in the determination of the matter. The law in question proposed a form of unequal treatment because the genetic link requirement excluded infertile persons from parenthood through surrogacy arrangements.
The Court recalled that characteristics not listed as distinctions under Section 9(3) of the Constitution could nevertheless be a ground for discrimination (See Harksen v. Lane (1991 (1) SA 300, Constitutional Court of South Africa). The Court found that infertility objectively has the potential to impair human dignity, and that differential treatment based on infertility would therefore constitute discrimination. Consequently, excluding members of a subclass from surrogacy infringes on their right to dignity, as it prohibits them from exercising their autonomy. Further, the differential treatment imposed by the genetic link reinforces the negative effects that infertility has on people, constituting discrimination prohibited under Section 9 of the Constitution.
The Court was not persuaded by the respondent’s argument that there was a rational connection between the differentiation and a legitimate governmental purpose. The Court believed the purpose of regulating surrogacy was for commissioning parents to have a child, which is also the purpose of legislation on IVF. Requiring a genetic link between a commissioning parent and the child in the context of surrogacy, but not for IVF, defeated the purpose. In the absence of governmental purpose, the Court was of the view that the offending legislation should be invalidated.
The Court established that the decision to have a child through a surrogacy arrangement fell under the constitutional right to bodily and psychological integrity, recognized under Section 12(2) of the Constitution. The Court held that the genetic link requirement infringed on the right of individuals to make decisions about reproduction.
Finally, the Court also agreed with the applicants that the genetic link requirement infringed on the right to privacy as it interfered with the commissioning parent’s or parents’ decision to use gametes for conception of their prospective child. The Court also found that the genetic link requirement infringed the right to health care protected under Section 27 of the Constitution. Furthermore, the Court affirmed that surrogacy is recognized as a form of reproductive health care in South Africa. The Court therefore held that Section 294 was inconsistent with the Constitution because it violates the constitutional rights to non-discrimination, dignity, privacy, health care, and bodily and psychological integrity. The Court struck down the genetic link requirement, invalidating Section 294 to the extent of its inconsistency with the Constitution.