AB and Another v Minister of Social Development

• Jurisdiction: South Africa
• Judge: Basson J
• Judgment Date: 12 August 2015
• Docket Number: 40658/13
• Hearing Date: 12 August 2015
• Counsel: D Jordaan and C Woodrow for the first and second applicants. N Cassim SC (with H Mpshe) for the respondent.
• Court: Gauteng Division, Pretoria

Basson J:

Surrogacy I

[1] 'Surrogacy' is regulated by ch 19 of the Children's Act [1] (the Act). Although 'surrogacy' is not defined by the Act, the Act does contain the following definition of a 'surrogate motherhood agreement': J

Basson J

A '(A)n agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned B becomes the legitimate child of the commissioning parent . . . .'

[2] The principal purpose of the surrogate motherhood agreement is that the surrogate mother will carry a child (pregnancy) for the commissioning parents. Once the child is born, the child becomes — from the moment of the birth and for all purposes — the child of the commissioning C parent or parents. [2] A surrogacy motherhood agreement will only be valid if a court has confirmed the agreement. [3] No artificial fertilisation of the surrogate mother may take place before the agreement has been confirmed by the court and after a lapse of 18 months from the date of the confirmation of the agreement by the court.

D [3] An important requirement that must be met before a court may confirm a surrogate motherhood agreement is contained in s 295(a) of the Act. For purposes of this judgment I shall refer to this requirement as the 'threshold requirement':

'295 Confirmation by court

E A court may not confirm a surrogate motherhood agreement unless —

(a)

the commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible . . . .'

[4] In essence it is therefore required — as a threshold requirement — that surrogacy is available only to those parent(s) who are unable to procure F implantation or carry a pregnancy to full term and in circumstances where this condition is permanent and irreversible. The threshold requirement is not the subject of constitutional challenge in these proceedings. [4] Those individuals who fulfil the 'threshold requirement' and who intend to use surrogacy as a method to become parents will be referred to in this judgment as 'the class'. (I shall revert to this concept G hereinbelow.)

[5] In addition to the threshold requirement contained in s 295 of the Act, a further requirement for a valid surrogacy agreement is set out in s 294 of the Act. I shall refer to this requirement as the so-called 'genetic H link requirement'. In the context of surrogacy, this requirement requires a genetic lineage to the child either from one or from both parents. Gametes [5] from either both parents or one of the two parents, or, in the

Basson J

case of a single parent, from that parent, are therefore necessary in terms A of s 295 of the Act to establish such a genetic lineage to the child.

[6] Compliance with this genetic link requirement is therefore fundamental to the validity of a surrogate motherhood agreement. Consequently where no such genetic link exists, the surrogacy agreement will be invalid in terms of the Act as it currently stands. If the commissioning B parents or single person are therefore biologically or medically unable to use their own gametes, the surrogate motherhood agreement will be invalid and the commissioning parents are legally prohibited from using surrogacy as an alternative for becoming parents. This section reads as follows:

'294 Genetic origin of child C

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 D single person, the gamete of that person.' [6]

[7] Commissioning parents or a single parent may therefore not elect to use male and female donor gametes (referred to in this judgment as 'double donors') in the context of a surrogacy motherhood agreement. However, outside of the surrogacy context, parents (or a single parent) E have the choice to either use their own gametes or to use (both) male and female donor gametes (double donor) in the context of in vitro fertilisation (herein referred to as 'IVF'). In the IVF context, therefore, the parents or single parent have the right to make use of double-donor gametes for any personal reason that they might consider convincing. F The so-called genetic link requirement can therefore be absent in the context of IVF. The only factual difference therefore between surrogacy and IVF is that in the case of IVF a commissioning parent carries and gives birth to the child, whereas in the case of surrogacy it is the surrogate mother who carries and gives birth to the child. In the case of IVF where the parents decide to use double-donors gametes, no genetic link will G

Basson J

A exist between the parents and the child. In the context of IVF such fertilisation is not prohibited. In the context of surrogacy the agreement will be invalid.

Constitutional challenge

[8] The applicants in this matter are challenging the constitutional B validity of the provisions of s 294 of the Act on the grounds that the genetic link requirement violates the first applicant's rights to equality, dignity, reproductive healthcare, autonomy and privacy. The applicants submit that, although it is accepted that most people would prefer to use their own gametes in order to establish a genetic link with a child, there C is no justification for the limitation of these rights on this basis and enforcement of such a preference on everyone in the context of surrogacy, especially where such a limitation does not exist in the context of IVF. I shall return to the submissions in this respect below.

[9] In the factual matrix of this case the requirement of the genetic link effectively makes it impossible for the first applicant to conclude a D surrogate motherhood agreement and consequently makes it impossible for her (except through adoption) to become a parent. Because of her specific medical condition, the first applicant is not only biologically unable to give birth to a child — which condition is permanent and irreversible — she is also unable to donate her own gametes (which is a E requirement for surrogacy (the genetic link requirement). Furthermore because she is not involved in a sexual relationship with a person who is able to make such a contribution and therefore comply with the genetic link requirement, she is also unable to donate the gametes from another parent. The only avenue open to the first applicant (bar adoption — F which will be indicated hereinbelow as not a viable option) to become a parent is to resort to surrogacy using gametes from two donors (double donor gametes). Surrogacy as an option to become a parent is, however, in the first applicant's case prohibited in terms of the Act as a result of her inability to establish a genetic link with a child. This she says constitutes an infringement of her constitutional rights.

G [10] Central to the applicants' case is the submission that members of the subclass [7] are entitled to the same choice that those people who are using IVF outside of the surrogacy context may have. It is further submitted that the public at large has an interest in a legislative regime that regulates surrogate motherhood that is aligned with the values of the H Constitution [8] and which is not arbitrary, discriminatory and destructive of the human dignity of especially members of the subclass. The second applicant therefore brings this application on behalf of the class and the subclass pursuant to s 38(c) of the Constitution, and in the public interest pursuant to s 38(d) of the Constitution.

[11] The respondent submits that the requirement that a genetic link I exist between the commissioning parent and the child is not unconstitutional and should therefore not be declared invalid. In the alternative

Basson J

it is submitted that, should this court strike down the impugned A provision, the invalidity should be suspended in order to allow parliament to rectify same.

The parties

[12] Consequent upon an anonymity order [9] the first applicant will not B be identified in any way whatsoever in the papers or in the judgment. The first applicant is therefore merely identified as AB.

[13] The second applicant, the Surrogacy Advisory Group, was granted leave to intervene and was joined as the second applicant on 8 November 2013. Subsequent to the second applicant's joinder to this case, the C second applicant is driving the case on behalf of both the applicants. The second applicant is a group of volunteers and represents the interests of the class of people who cannot bring a child into the world themselves and who intend to use surrogate motherhood to become parents. The second applicant assists in matching individuals who desire to become parents with a suitable surrogate mother. The commissioning D parents and the surrogate mother are also assisted during the process which includes medical assessments and psychological assessments. The second applicant also assists the commissioning parents to approach the court to confirm their surrogacy motherhood agreement. The deponent to the founding affidavit (on behalf of the second applicant) explains that since 1 July 2012 the second applicant had successfully matched E 55 prospective commissioning parents (27 couples and one single person) with prospective surrogate mothers. [10]

[14] The respondent is the Minister of Social Development. She is cited in her capacity...