AB and Another v Minister of Social Development

• Jurisdiction: South Africa

AB and Another v Minister of Social Development
2017 (3) SA 570 (CC)

2017 (3) SA p570

Citation	2017 (3) SA 570 (CC)
Case No	CCT 155/15; [2016] ZACC 43
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mhlantla J, Madlanga J, Nkabinde J and Zondo J
Heard	November 29, 2016
Judgment	November 29, 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.

Flynote : Sleutelwoorde B

Children — Parents — Surrogacy — Requirement that where commissioning parent is single person, her gamete must be used to fertilize surrogate C mother — Provision constitutionally valid — Children's Act 38 of 2005, s 294.

Headnote : Kopnota

AB was a single woman who was unable to carry a pregnancy to term, or to provide an egg to a surrogate mother who could carry the pregnancy for her (see [8]). She had sought to enter into an arrangement under which a D surrogate mother would be fertilized with donor egg and sperm, but had been barred from doing so by s 294 of the Children's Act 38 of 2005. It provides as a precondition for a valid surrogate motherhood agreement that a single commissioning parent provide a gamete for the conception of the child.

AB successfully challenged the constitutional validity of the section in the High Court, E and it referred its declaration of invalidity to the Constitutional Court for confirmation. The issues there were as follows:

(1)

Whether s 294 was irrational. Held, that it was rational: the means (the requiring of the commissioning parents to provide a gamete) was rationally connected to the end (the establishing of a genetic link between them and the child); and that end was legitimate (the link ensuring the child knew its F origins, which was important to its self-identity and respect) (see [283], [285], [287] – [288] and [292] – [294]).

(2)

Whether s 294 limited AB's right to equality. Held, that it did not: the difference of treatment under the section was not based on any attribute of AB, such as her inability to donate a gamete, and so did not amount to G discrimination. The difference of treatment resulted from her choice to not enter into a relationship with a person who could provide a gamete (see [295], [298], [301] – [303] and [305]).

(3)

Whether s 294 limited AB's right to make decisions concerning reproduction. Held, that it did not: the right protected a woman's decisions regarding her own reproduction; and the decision AB wished to take regarding surrogacy and which was barred by s 294, was not a decision concerning her H own reproduction (see [306], [313] – [315] and [318]).

(4)

Whether s 294 limited AB's rights to reproductive healthcare, or to privacy. Held, that it did not (see [319] and [322] – [323]).

Appeal upheld, and order of constitutional invalidity not confirmed (see [330]).

The minority judgment

The I minority considered, firstly, whether s 294 limited AB's right to make decisions concerning reproduction. It concluded that it did. It reasoned as follows (see [72], [91], [94] and [97]):

•

The decision did not have to involve the right-invoker's own reproduction; and negation of the decision did not have to have a physical effect — a psychological impact was sufficient (such impact was to be assessed J objectively)(see [70], [75], [80] – [82]).

2017 (3) SA p571

•

Thus, infertility was a source of psychological harm; surrogacy was a A means to ameliorate it; and s 294's removal of the choice of surrogacy resulted in continuing psychological harm (see [86], [90] and [93]).

The second issue was whether s 294 violated AB's right to equality. The minority held that it did (see [127]). It reasoned as follows:

•

There were two differences of treatment. The first concerned A and B, B who both sought to use surrogacy. A, who could donate a gamete, could avail herself of it; but B, who could not contribute a gamete, could not do so. The second situation involved C, who sought in vitro fertilisation, and D, who sought to use surrogacy. While C was not required to contribute a gamete, D was (see [99] – [101]).

•

The High Court's conclusion was that the difference of treatment of C C and D was arbitrary and hence that s 294 was invalid. This was an error: the situations of C and D were markedly dissimilar (C carried the child, and D did not), which was a reason to treat them differently (see [103] – [104]).

•

Both the first and second differentiations constituted discrimination. This in that the attribute on which the first was based (inability to contribute D a gamete), and on which the second was based (ability to carry the child), had the potential to impair dignity (see [106], [120] – [121] and [123]).

•

The discrimination was unfair, and s 294 thus limited the right to equality (see [125] and [127]).

The third issue was whether the limitation of the rights was justifiable. The minority's conclusion was that it was not (see [129] and [213]). In coming to this conclusion it weighed the following factors: E

•

That the purpose of s 294 was to prevent avoiding of the adoption process (see [171]).

•

That no reasons had been provided for why it was an important purpose; and that it had a flawed basis: a misunderstanding that adoption and double-donor surrogacy were similar processes (both resulting in the F acquisition of a genetically unrelated child). Viewed though in the light of their relational and psychological effects, the processes were actually very different (see [172] – [176], [181] and [185]).

•

That the nature of the limit was to bar surrogacy entirely if a gamete could not be provided, and that the limit's extent was great — 'there [was] no comparable alternative to double-donor surrogacy' (see [208] – [209]). G

•

That s 294 was closely related to its purpose, and there were no less restrictive means to achieve it (see [210] and [212]).

The minority would have declared s 294 invalid, but would have suspended the declaration to allow Parliament to amend the provision (see [214] and [224] – [225]).

Cases cited H

Southern Africa

AB and Another v Minister of Social Development 2016 (2) SA 27 (GP): reversed

AD and Another v DW and Others (Centre for Child Law as Amicus Curiae; Department for Social Development as Intervening Party) 2008 (3) SA 183 (CC) (2008 (4) BCLR 359; [2007] ZACC 27): referred to I

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): referred to

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): dictum in para [51] applied J

2017 (3) SA p572

Barkhuizen A v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5): referred to

Barnard v Santam Bpk 1999 (1) SA 202 (SCA): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): dictum in paras [89] – [90] applied

Bel B Porto School Governing Body and Others v Premier, Western Cape, and Another 2002 (3) SA 265 (CC) (2002 (9) BCLR 891; [2002] ZACC 2): referred to

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2): referred to

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A): referred to

Biowatch C Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): dictum in paras [23] – [24] applied

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

Centre D for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632 (CC) (2009 (2) SACR 477; 2009 (11) BCLR 1105; [2009] ZACC 18): referred to

Christian Lawyers Association of SA and Others v Minister of Health and Others 1998 (4) SA 1113 (T) (1998 (11) BCLR 1434): referred to

Christian Lawyers Association v Minister of Health and Others (Reproductive E Health Alliance as Amicus Curiae) 2005 (1) SA 509 (T) (2004 (10) BCLR 1086; [2004] 4 All SA 31): referred to

Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) (1995 (10) BCLR 1382; [1995] ZACC 7): referred to

Constitutional F Assembly, Chairperson of the, Ex parte: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253; [1996] ZACC 26): referred to

Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) (2014 (8) BCLR 869; [2014] ZACC 16): dictum in para [28] applied

De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) (1998 (7) BCLR 779; G [1998] ZACC 6): referred to

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2004 (1) SA 406 (CC) (2003 (2) SACR 445; 2003 (12) BCLR 1333; [2003] ZACC 19): referred to

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): H referred to

Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1; [2006] ZACC 10): referred to

Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC) (2002 (10) BCLR 1006): referred to

Els I v Bruce 1922 EDL 295: referred to

Esorfranki Pipelines (Pty) Ltd and Another v Mopani District Municipality and Others [2014] 2 All SA 493 (SCA): referred to

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