At least one parent must donate sperm or eggs for a surrogacy agreement to be legal in South Africa.
This pronouncement by the Constitutional Court on Tuesday dashes the hopes of an infertile woman who had wanted to ask a surrogate to carry a baby for her — despite being medically unable to use her own eggs or to donate sperm from a spouse or sexual partner. She is single after a split from her husband.
Her only legal option for a child now is through adoption.
At stake during the complex legal arguments were fundamental issues involving the natural bond between a parent and child‚ as well as the child’s right to know where he or she comes from.
In its ruling‚ the Constitutional Court maintained there must be a genetic link between the baby and at least one of the people commissioning the surrogate pregnancy.
The court refused to confirm a high court order‚ which invalidated a requirement that there must be a genetic link between the baby and at least one of the people commissioning the surrogate pregnancy.
The court dealt with this issue after the high court in Pretoria declared last year that the “genetic link requirement” for the commissioning parent who entered into a surrogate motherhood agreement was invalid.
The woman‚ known as AB to protect her privacy‚ had undergone 18 in-vitro fertilisation (IVF) cycles to conceive a child between 2001 and 2011.
In the first two‚ she used her own eggs and her then husband’s sperm.
Her gynaecologist advised her it would not be feasible to continue harvesting her eggs.
For the next IVF cycles‚ she used anonymous donor eggs with the sperm from her then husband.
The IVF treatments twice resulted in pregnancy but ended in miscarriages.
AB was advised to consider surrogacy as a means to have a child.
She was‚ however‚ informed that the law does not allow people who are infertile and cannot contribute their own gamete for conception‚ to use surrogacy.
This resulted in the constitutional challenge in the high court.
Her challenge was based on the grounds that the “genetic link requirement” in the Act violated her rights to equality‚ human dignity‚ privacy‚ reproductive autonomy and access to healthcare services.
In a majority judgment‚ Justice Bess Nkabinde did not agree with the high court’s conclusion that section 294 of the Children’s Act constituted an irrational legal differentiation equality provisions in the Constitution.
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.
Nkabinde said the case raised complex and important issues concerning the validity of a legislative provision that regulated surrogate motherhood agreements.
“It touches on sensitive issues that cut across cultures and for both genders: issues of infertility and the inability to conceive a child or to produce a gamete‚ in order to meet the legal requirement to enter into a surrogate motherhood agreement.
“At its core is the power of the state to regulate the assistive reproductive opportunities available to those who are conception and pregnancy infertile‚ to have children of their own.”
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.
She said by preventing those who are both conception- and pregnancy- infertile from improving the negative effects of their infertility through surrogacy‚ the provision harmed their psychological integrity.
The Centre for Child Law‚ which was admitted as friend of the court‚ said it was pleased that the genetic link stayed as a requirement in surrogacy matters.
It said it would still need to read the judgment in detail before making any further comments.
The centre had based its argument in court on international law which provides that children have the right to know where they come from.
It also argued that the high court should have taken greater cognisance of the psychological effects that having no genetic connection to a parent can have on a child.