AB and Another v Minister of Social Development

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mhlantla J, Madlanga J, Nkabinde J and Zondo J
• Judgment Date: 29 November 2016
• Citation: 2017 (3) SA 570 (CC)
• Docket Number: CCT 155/15 [2016] ZACC 43
• Hearing Date: 29 November 2016
• Counsel: D Jordaan (with C Woodrow) for the second applicant. N Cassim SC (with H Mpshe) for the respondent. K Ozah (attorney) for the amicus curiae, the Centre for Child Law.
• Court: Constitutional Court

Khampepe J (Cameron J, Froneman J and Madlanga J concurring):

Introduction

[1] The decision to have a child of one's own has for thousands of years B formed a central part of the lives of human beings. It is a blessing that is for the most part taken for granted. The effects of an inability to carry out that decision have, for so many of us, been nothing short of devastating. Laura Bush puts it eloquently when she writes that —

'(t)he English language lacks the words to mourn an absence. For the C loss of a parent, grandparent, spouse, child or friend, we have all manner of words and phrases, some helpful some not. Still we are conditioned to say something, even if it is only I'm sorry for your loss. But for an absence, for someone who was never there at all, we are wordless to capture that particular emptiness. For those who deeply want children and are denied them, those missing babies hover like D silent ephemeral shadows over their lives. Who can describe the feel of a tiny hand that is never held?' [1]

[2] We are not in any way short of words when it comes to describing the effects of experiencing infertility: grief, sadness, despair, panic, helplessness and isolation are but a few of the feelings that often ensue. For a large number of people, infertility has been 'the most upsetting experience of their lives'. [2] For others, infertility is rated as comparably stressful to the loss of a partner or a child. [3] The likelihood of depression has been shown to double for women who are infertile. [4] Disturbingly, infertility levels are on the rise globally, with one in every 10 people facing infertility problems. [5]

[3] We are fortunate, however, to live in an era where the effects of infertility can be ameliorated to a large extent through assistive reproductive technologies. The technological advances seen over the last half century have greatly expanded the reproductive avenues available to the infertile. These reproductive avenues should be celebrated as they allow our society to flourish in ways previously impossible.

[4] At the heart of this matter lies the question of the extent to which the state may regulate the reproductive opportunities available to those who are unable to have children of their own because they are conception and pregnancy infertile. [6]

Khampepe J

Parties A

[5] The first applicant is cited as AB pursuant to a court order intended to protect her identity. [7] She is an adult who wishes to enter into a surrogacy agreement in order to have a child of her own. The second applicant is the Surrogacy Advisory Group (Surrogacy Group), a voluntary association of medico-legal practitioners and other professionals B experienced in the field of infertility that offer education, advice and support, free of charge, to persons considering entering into surrogacy agreements in order to become parents. The Surrogacy Group seeks to promote and protect the interests of surrogate mothers and commissioning parents.

[6] The respondent is the Minister of Social Development (Minister), C cited in her capacity as the Minister responsible for the administration of the Children's Act. [8]

[7] The Centre for Child Law (Centre) was admitted as amicus curiae. It is a law clinic registered with the Law Society of the Northern D Provinces. Its primary objectives are establishing and promoting child law as well as upholding the rights of children in South Africa within an international and regional context. I am grateful to the Centre for its contributions to these proceedings. They have been of valuable assistance.

Factual background E

[8] AB has admirably persevered in distressing circumstances. Between 2001 and 2011 she underwent 18 in vitro fertilisation (IVF) cycles which were all unsuccessful in helping her fall pregnant. These attempts went through several phases: F

(a)

In 2001, AB attempted to fall pregnant by undergoing two cycles of IVF treatment using her own ova and her then-husband's sperm. She was in her early 40s at the time. The couple's endeavours proved unsuccessful on both occasions. After the second cycle failed, AB's gynaecologist advised her that it would no longer be feasible to G continue harvesting her own ova; she could no longer supply her own gametes for the purpose of conceiving a child.

(b)

For this reason, AB undertook a third IVF cycle using anonymous donor ova and the sperm of her then-husband. After this attempt failed, the process was repeated for a fourth time. This attempt was likewise unsuccessful. H

(c)

In 2002, after 20 years of marriage, AB's relationship with her husband ended in divorce. This did not weaken her resolve to have a child. She began using anonymous donor ova as well as donor sperm, repeating the process nine times, on each occasion unsuccessfully. I

(d)

In 2009, AB switched fertility clinics. At the new clinic, a further five

Khampepe J

IVF A cycles resulted in AB falling pregnant on two occasions, each time ending in miscarriage. Following her second miscarriage, AB was informed that the chances of successful conception by way of IVF treatment had become, in the words of Dr Cassim, her gynaecologist at the new clinic, 'highly improbable if not impossible'. AB is thus permanently and irreversibly infertile in two different senses: first, B she is unable to contribute her own gametes for conception; and second, she is unable to carry a pregnancy to term. [9]

[9] Later in 2009, Dr Cassim recommended that AB look into surrogacy as a means to have a child. Through the surrogacy programme of C Baby2Mom — a surrogacy facilitation agency — she was put in touch with a potential surrogate mother, who agreed to act for her. As a single woman unable to donate her own ova, the only way for AB to proceed was to use both donor ova and donor sperm, as she had done over the course of the last 14 of the total of 18 IVF cycles she had undergone.

[10] D However, on consulting an attorney, AB was informed that she could not enter into a surrogacy agreement without contributing a gamete to the surrogacy process. Specifically, AB was made aware that she, as a single woman incapable of donating a gamete, could not legally enter into a surrogacy agreement because of s 294 of the Children's Act. [10] To use her own words, AB experienced a 'mixture of shock, sadness and E bafflement'.

[11] Against this backdrop, AB approached the High Court of South Africa, Gauteng Division, Pretoria (High Court), seeking an order declaring s 294 of the Children's Act inconsistent with the Constitution and invalid. The Surrogacy Group and the Centre were subsequently F joined as second applicant and amicus curiae respectively.

In the High Court

[12] The applicants' constitutional challenge in the High Court was grounded in their assertion that s 294 violates the rule of law, as well as the rights to equality, human dignity, 'reproductive autonomy', privacy G and access to healthcare.

Khampepe J

[13] The Minister opposed the application on several grounds, namely A that:

(a)

It was not only AB's rights that were at issue, but also those of the child to be created by the surrogate mother and donor(s). The prospective child had the right to know its genetic origins.

(b)

The adoption process in South Africa catered for AB's need to have B a child.

(c)

To allow a single infertile person to create a child with no genetic link to her would result in the creation of a 'designer' child. This would not be in the public interest.

(d)

Section 294 prevents commercial surrogacy.

[14] In its reply, the Surrogacy Group asserted that none of these C grounds offered sufficient justification for the retention of the offending provision. Seeing as the Minister had not offered a proper justification for the purported violation of the rights listed above, [11] the Surrogacy Group sought an order declaring s 294 of the Children's Act inconsistent with the Constitution and invalid. D

[15] The High Court's judgment was penned by Basson J. [12] I do not propose to retrace the judgment in detail. In sum, the High Court came to the conclusion that s 294 of the Children's Act unjustifiably violates AB's rights to equality, human dignity, 'reproductive autonomy', privacy and access to healthcare. It accordingly declared the section constitutionally E invalid. The court also granted a special costs order against the Minister.

[16] The High Court's declaration of constitutional invalidity triggered this court's confirmation jurisdiction. [13]

In this court F

The applicants' submissions

[17] The Surrogacy Group asserts that the High Court judgment is correct, both in fact and in law, and that the declaration of invalidity should therefore be confirmed. [14] In its view 'families without a G parent-child genetic link are just as valuable as families with such a link' in our constitutional dispensation.

[18] The applicants accept that one of the purposes of s 294 of the Children's Act is to guarantee that a child to be born as a consequence

Khampepe J

of A a surrogate motherhood agreement is genetically related to at least one of her commissioning parents. [15] The Surrogacy Group argues, however, that this purpose does not immunise the provision from constitutional scrutiny. It frequently refers to what it calls the 'threshold requirement'. This is defined as 'the requirement found in s 295(a) of the Children's Act, namely that the commissioning parent or parents must not be able B to give birth to a child and that such condition must be permanent and irreversible'.

[19] The Surrogacy Group also draws a distinction in its written submissions between what it terms the 'class' and the 'subclass'. This C same terminology is adopted by the High...