On 12 August, after a long battle, the Pretoria High Court has ruled that the genetic link requirement in section 294 of the Children’s Act 38 of 2005 (The Act) is invalid.
Relevant section of the Children’s Act 38 of 2005
Section 294 of the Act states:
Genetic origin of child.—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 single person, the gamete of that person.
The section states that the surrogate agreement shall not be valid unless the gametes of both parents are used in the conception or, if a person is single, then the gamete of that person.
This section was challenged in the case of AB & Surrogacy Advisory Group vs Minister of Social Development with Centre for Child Law as Amicus Curiae. The applicant (who opted to remain anonymous in the proceedings) had as a result of her specific medical condition undergone approximately eighteen in vitro fertilisation (IVF) treatments and was still unable to achieve pregnancy [1]. The applicant was thus unable to biologically give birth to a child by contributing gametes for the surrogate agreement [2]. As she was not involved in a relationship with a person who could make such a genetic link contribution, her only option, other than adoption, would be to resort to surrogacy using gametes from two donors.
According to the Act, it was argued, that surrogacy was not a permissible option as the applicant could not establish a genetic link to the child [3]. Her only option was to adopt and this, it was argued by her counsel, infringed upon the applicant’s constitutional rights of equality, dignity, reproductive health care, autonomy and privacy [4].
What do IVF and surrogacy mean?
According to Regulations, In vitro fertilisation is defined as ‘the process of spontaneous fertilisation of an ovum with a male sperm outside the body, in an authorised institution’ [5]. In vitro fertilization is a process whereby eggs and sperm are brought together in a laboratory petri dish to allow the sperm to fertilize the egg. With IVF you can use any combination of your own eggs and sperm and donor eggs and sperm. After the fertilization occurs one or more eggs which are fertilized are then placed in the uterus [6].
Surrogacy involves a third party who carries the baby in utero for the commissioning parent or parents. This is as a result of the parties entering into a legally valid agreement in terms of which the surrogate mother agrees to carry the foetus to term, subject to the provisions of the surrogacy agreement as read with the Children’s Act. The surrogacy agreement is only valid if it is confirmed by the court following the requirements in Chapter 19 of the Children’s Act. The court, in its ruling, used surrogacy and IVF as synonyms.
This is evident at paragraph 7 where the court states:
The only factual difference therefore between surrogacy and IVF is the fact 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 [7].
The fundamental distinction between IVF and surrogacy is that a requirement of the latter’s validity is that IVF is to be utilised. IVF, however, occurs outside of surrogacy and is available to any couple who qualifies.
The court’s reason for the decision
The Court stated that the appropriate relief for the applicant is the striking down of the genetic link requirement. The Court went on to state that such a striking down is the only way to ensure the consistency of Chapter 19 of the Children’s Act (which deals with surrogate motherhood) with the Constitution and its underlying values [8].
The Court stated that the striking down of the provision shall not adversely affect the remainder of Chapter 19 of the Act and its legal checks and protections. The Court further stated that, should any further person decide to use donor gametes, that the regulations of the National Health Act 61 of 2003 already regulate gamete donor selection [9].
Conclusion
The High Court judgment is a progressive one as it opens the way for more people to use surrogacy. The genetic link requirement in section 294 is invalid. However, section 294 remains in force until the Constitutional Court confirms this order of invalidity.
The reasons and conflating of IVF and surrogacy is erroneous and should be corrected. One will wait and see how the High Court judgment is effected in practice.
Arvitha Doodnath
Legal Researcher
arvitha@hsf.org.za
References:
1. Paragraph 18 of the judgment.
2. Paragraph 9 of the judgment.
3. Ibid.
4. Paragraph 8 of the judgment.
5. Regulations Relating to Artificial Fertilisation of Persons – GN R175 of 2012.
6. http://www.webmd.com/infertility-and-reproduction/in-vitro-fertilization-for-infertility
7. Paragraph 7 of the judgment.
8. Paragraph 100 of judgment.
9. Paragraph 101 of judgment.
