South Africa protects the rights of minorities or previously marginalised groups through legislative and constitutional means. The right to equality is constitutionally entrenched. Section 294 of the Children’s Act 38 of 2005 (hereinafter referred to as “the Act”) prevents persons who are infertile and unable to donate gametes for the purpose of a surrogacy agreement, from entering into said agreement. A genetic link to at least one of the commissioning parents is a requirement for a valid surrogacy agreement. A brief explanation of the most recent decision in this area of law, being the case of AB and Another v Minister of Social Development, follows. What are the repercussions that follow the apex court’s decision in AB? Do prospective parents in surrogacy agreements, who are unable to have a child of their own and unable to contribute genetically, have any remedies?
An analysis of section 294
This section provides for a valid surrogacy agreement in the following instances: i) Both commissioning parents provide their gametes; ii) If one of the commissioning parents is unable, for any medical or biological reasons, to provide a gamete, then the other commissioning parent needs to provide a gamete; iii) If the commissioning parent is a single person, they must provide their own gamete.
Case summary of AB and Another v Minister of Social Development
In this matter, the 1st Applicant (“AB”) endured 18 IVF cycles, all of which were ultimately unsuccessful, in order to become pregnant. Her gynaecologist considered her chances of falling pregnant as “highly improbable”, thus rendering her infertile for two reasons: She was unable to contribute her own gametes for conception; She was unable to successfully carry a pregnancy to full-term.
In the High Court, AB sought an order to declare section 294 of the Act constitutionally unsound and to be invalidated. The High Court held that section 294 of the Act unjustifiably violated AB’s rights to equality, dignity, reproductive autonomy, privacy and access to healthcare. As a result of this decision, the Minister of Social Development appealed against the High Court’s judgment.
The matter proceeded to the Constitutional Court, who had to determine if it should confirm the High Court’s ruling and invalidate section 294 of the Act. Nkabinde J, for the majority, held that the section was not irrational because its purpose was to create a genetic bond between the child and its commissioning parents. This was in accordance with the purpose of the Act as it protected the best interests of the child. In addition to this finding, the majority found that the right to equality and the right to reproductive autonomy was not violated, as the right to bodily integrity is not extended to another person’s body. Even if this is the case, it was surmised, it will be difficult to establish that section 294 can impair the right of someone who is unable to produce gametes.
Although the majority ultimately rendered AB’s challenge unsuccessful, the minority judgment warrants careful consideration. Khampepe J, who wrote for the minority, emphasised that the right to freedom and security is premised on protecting psychological and physical integrity. She also stated that the right to equality was violated as a genetic link is required in surrogacy agreements but not IVF, where double donor conceptions are allowed. Section 294 undervalues alternative familial structures, which is inconsistent with the Constitution. Family formations evolve with the development of society.
Khampepe J also highlighted a crucial contradiction within this Act. The Respondent submitted that the purpose of section 294 is to ensure that a child knows its genetic origin. This is clearly inconsistent with section 41 of the Act, which prohibits a child from knowing the identity of a person who provided donor gametes. Section 41(2) of the Act is a hurdle to this aim. Based on this, Khampepe J wrote that it is in fact the constitutionality of section 41(2) that should be challenged. Khampepe J concluded the minority judgment by finding that section 294 indeed unjustifiably limits AB’s rights.
The decision handed down by our apex court in the AB case has had, and will have, ongoing repercussions on the interpretation of section 294. A key example of this is the decision handed down by the Pietermaritzburg High Court in Ex parte DW, which also poses an interesting dilemma with regard to enabling a child to know its genetic origin.
Ex Parte DW
Here, the Applicant (a single man who was conception infertile and thus unable to provide a gamete) sought a declaratory order stating that he would be able to use sperm from a donor in the USA and whose identity would be disclosed to the child upon attaining the age of majority.
The Applicant contended that the purpose of section 294 is fulfilled should the donor of a gamete have their identity revealed to the child, thus ensuring that although the child lacks a genetic link to a parent or even both parents, the child will know its genetic origin. Ploos Van Amstel J rejected this request.
The application was dismissed. Ploos Van Amstel J found that the Applicant’s interpretation of section 294 was not feasible and failed to establish the meaning of the wording within that section.
A moral argument for change
A child born from surrogacy and who may not be genetically related to either of the commissioning parents, will not necessarily suffer harm. Care is to be taken to ensure that a child’s best interests and legal right to support are safeguarded. A genetic relation, in itself, poses no guarantee for a loving, supportive and protective household. A prospective parent who shares no genetic link in the intended surrogacy contractually assumes responsibility and thereby ought to give greater certainty to ensuring the rights of the child are maintained and protected.
The majority in the AB judgment used an African adage in support of retaining the genetic link requirement which, when translated, says “a child belongs not to the one who provides but to the one who gives birth to the child”. This is in stark contrast to the communal or harmonious relationships embodied within the value of ubuntu, which doesn’t place emphasis on genetic and biological relationships. Instead, the core aspect of this entrenched societal value views everyone as being part of a family.
The underlying premise of section 294 of the Children’s Act is for a child to know their genetic origin. This is not similarly required in regard to children born through IVF, who may well have no genetic bond to the intended parent. Privacy laws surrounding surrogacy agreements and section 41 of the same Act contradict this underlying principle.
It appears that the essence of parenthood is to provide a loving, nurturing and protective home to prospective children, regardless of your biological relation to them. Being unable to bear your own child or contribute to their creation is a hardship suffered by many. To preclude a valid surrogacy agreement from being entered into by persons who may be infertile is inconsistent with the value of ubuntu and likely, the prevailing boni mores of our society.
 Children’s Act 38 of 2005.
  ZACC 43.
 Supra 2
  ZAKZPHC 11.
 Supra 4
 Supra 1