Legal: Genetic link requirement

The law fails to protect infertile persons

The Surrogacy Advisory Group, a voluntary non-profit organisation that aims to promote the interests of surrogacy commissioning parents and surrogate mothers, applied to Court to strike down the so-called ‘genetic link requirement’ for surrogacy.

This statutory requirement requires that surrogacy commissioning parents must contribute their own gametes (sperm and eggs) for the conception of their children. This means that certain future parents (like single women who have ovarian failure) were unable to access surrogacy to have a child.

The Minister of Social Development opposed this application.

Adv Donrich Jordaan, an expert in biolaw and human rights who acted on behalf of the Surrogacy Advisory Group, argued that the genetic link requirement violates six constitutionally protected human rights. Based on expert psychological evidence, Adv Jordaan further argued that infertile people often experience great psychological pain, and are also sometimes marginalised by society. The current law as it stands marginalizes these people suffering from infertility even further.

The case was first heard by the Pretoria High Court, which held in favour of the Surrogacy Advisory Group and declared the genetic link requirement unconstitutional.

The case was next heard by the Constitutional Court, which was divided on the issue. A minority of the justices was in favour of confirming the High Court judgement. However, a majority of the justices held that the state was within its right to regulate surrogacy by requiring that a child must have a genetic link with his or her commissioning parents. As such, the majority of the Constitutional Court held that the genetic link requirement is constitutional.

‘Surrogacy is a wonderful gift that a woman can give another couple that cannot carry a pregnancy themselves. We are disappointed that the majority of the Constitutional Court has refused to stand up to protect infertile people from discriminatory legislation,’ says Robynne Friedman, chief advisor of the Surrogacy Advisory Group.

The case centred on the best interests of the child. The Surrogacy Advisory Group relied on the expert opinions of leading international and local psychologists. These experts all stated that a genetic link between the parent and the child is not essential for a child’s well-being. While the Pretoria High Court gave due cognisance to these psychological evidence, it was unfortunately completely ignored by the majority of the Constitutional Court.

‘It is a sad day for all South Africans that our highest court has simply disregarded the uncontroverted expert evidence, and made a decision based on the justices ‘own personal beliefs’, stated Robynne Friedman.

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For more information:

The Surrogacy Advisory Group / www.surrogacy.co.za

Contact person: Robynne Friedman / 011 476 6900/ rob@surrogacylaw.co.za