South African legislation only recognizes altruistic surrogacy, while commercial surrogacy is considered illegal, carrying criminal sanctions if practised. South Africa formally recognized altruistic surrogacy upon the coming into operation of Chapter 19 of the Children’s Act 38 of 2005 on 1 April 2010.
Chapter 19 sets out the requirements for legal surrogacy in South Africa, and provides for the consequences of such an agreement. Prior to the coming into operation of Chapter 19 of the Children’s Act, the usual practice was for parties to enter into a surrogate motherhood agreement, and upon the birth of the child, approach the Children’s Court to apply for a known adoption. This was necessary because South African law automatically assumed that the birth mother of a child was also the biological mother. However, the legislator recognized the problems that resulted from this rather unregulated approach, resulting in an extensive mandate to formalize the legality of surrogacy agreements, which is now known as Chapter 19 of the Children’s Act.
Although the sections found in Chapter 19 of the Act are relatively straightforward, Chapter 19 of the Act has been challenged on constitutional grounds. In particular Section 294 of the Children’s Act was challenged in the case of AB v Minister of Social Development 2015 (10) BCLR 1228 (2016 (2) SA 27) (GP).
Section 294 reads as follows:
“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.”
By way of clarification, the commissioning parent is a person who enters into a surrogate motherhood agreement with a surrogate mother, and a gamete is either one of the two generative cells essential for human reproduction.
Therefore, the essence of Section 294 is that there should be a genetic link between at least one of the commissioning parents and the child to be conceived via surrogacy.
In the case of AB v Minister of Social Development, first heard in the High Court, the applicant was a single female divorcee, who was unable to have children. She had undergone a substantial number of unsuccessful IVF attempts, both when the gametes of herself and her husband were used, also when a donor egg and her husband’s gametes were used, and finally, even when using a donor egg and donor sperm (double-donor). Given these unsuccessful attempts, she thought that she could make use of surrogacy as an alternative. The result of such a surrogacy arrangement would be for a donor sperm and a donor egg to be inseminated into another woman (the surrogate mother) who would then carry the resultant pregnancy to term.
However, upon seeking legal advice, the applicant was informed that section 294 of the Children’s Act made it impossible for her engage a surrogate, because she did not have her own gametes (eggs) to use for purposes of the surrogacy. Section 294 effectively excludes single persons who have a permanent or irreversible condition which does not allow them to produce effective gametes from any surrogacy arrangement. AB therefore decided to challenge the constitutionality of section 294.
The respondent, the Minister of Social Development argued, inter alia, that it was not in the public’s best interests to allow a single, infertile person to create a “designer” child with no genetic link to himself or herself and that the adoption process catered for the need of a single parent, in AB‘s position, to have a child. The Minister also argued that section 294 was designed to protect the best interests of children and to prevent the commodification of children. The High Court disagreed with the Minster’s submission and ruled that section 294 was unconstitutional, as it infringed a person’s right to equality and human dignity (insofar as those who are fertile are able to conclude a surrogate motherhood agreement, even when they are single, and those who are infertile cannot do so).
Clearly, the judgment passed by the High Court was a victory for the applicant. However, the declaration of unconstitutionality required confirmation by the Constitutional Court, in order for the relevant section to indeed be deemed unconstitutional.
The Constitutional Court (AB and another v Minister of Social Development (Centre for Child Law as amicus curiae) 2017 (3) BCLR 267 (CC) was now faced with the task of either confirming the High Court’s finding that section 294 was unconstitutional, or finding that this was in fact not the position. The judgment passed by the Constitutional Court contained both a majority and minority judgment, which meant that not all the Constitutional Court judges were in agreement on the legal question before them.
The majority of the court found there to be legitimate reasons for the inclusion of section 294 of the Children’s Act in that legislation, and it was therefore deemed not to be unconstitutional.
The majority judgment, which to date has not been challenged and remains the current authority regarding the ‘genetic link’ requirement, provided its own rationale as to why section 294 was correct and constitutional. After a full ventilation of the various legal questions before the court, the majority was of the view that section 294 was not discriminatory because it was not this section which caused AB (and others in a similar position) to feel socially isolated, marginalized, or/discriminated against, but in fact an existing medical condition. The majority ruled that no right to surrogacy, per se, exists in our law but other options existed which could be used by a person when they did not meet the requirements stipulated in Chapter 19 (and more specifically, section 294) of the Children’s Act. In other words, a single person wishing to become a parent through surrogacy, such as AB, has the choice to enter into a permanent relationship with a fertile partner and thereby qualify for surrogacy. If such an infertile person elects not to do so, then such person must live with the consequences of his or her choice; alternatively, explore the adoption process. It was the majority opinion that the requirement of donor gametes from a commissioning parent served a rational purpose by creating a bond between the child and the commissioning parent(s) – which was ultimately in the best interests of the child to be born.
In brief, the majority judgment of Nkabinde J emphasized that the ‘best interests of the child’ were paramount, both in terms of the Children’s Act and in terms of section 28(2) of the Constitution, while Khampepe J, writing for the minority, also took into account the interests of the infertile person who wants to become a parent.
In conclusion, in some respects the provisions of Chapter 19 of the Children’s Act relating to surrogacy have improved the previous position, where commissioning parents had to adopt their own biological child following the birth of such child to a surrogate. But, our Constitutional Court has upheld the constitutionality of section 294 of the Children’s Act and so confirmed that at least one of the commissioning parents needs to have a genetic bond to the child to be born in terms of a surrogacy agreement.
Read the article on page 21 in the SAMA Insider here.
