The genetic link required in a surrogate motherhood agreement infringes on human dignity and discriminates based on infertility.
This was advocate Donrich Jordaan’s argument in the Constitutional Court on behalf of a woman who cannot bear children.
The woman‚ a divorcee‚ has been battling to become a mother for more than 14 years. She underwent eighteen unsuccessful in vitro fertilisation (IVF) procedures in an attempt to fall pregnant. Gametes from anonymous male and female donors were used in all the procedures.
She then turned to surrogacy but was faced with Section 294 of the Children’s Act‚ which deems a surrogate motherhood agreement invalid unless the gametes of at least one of the commissioning parents are used to conceive the child that will be carried by the surrogate.
This excludes single people who are barren and couples where both partners are infertile.
On Tuesday the woman‚ who cannot be named by order of the court‚ asked the Constitutional Court to confirm an order of the Pretoria High Court last year declaring Section 294 inconsistent with the constitution and invalid.
The Department of Social Development is appealing against the High Court’s ruling.
Jordaan argued that the woman was discriminated against based on her infertility.
“It infringes on a person’s dignity…included in the right to dignity is also a right to life‚” Jordaan said.
He said while the state provided options through which the woman could have children ‚ the only legal constraint that limited her from accessing some of these options was the genetic requirement.
Advocate Nelly Cassim‚ on behalf of the Department of Social Development‚ argued that the genetic link must be present in order for surrogacy to be valid.
“To sever the section defeats the government’s purpose for which the law was introduced.
“A genetic link is pivotal to the law of surrogacy. Without Section 294‚ there is no law of surrogacy‚” Cassim argued.
Karabo Ozah for the Centre for Child Law‚ which joined the case as a friend of the court‚ argued that the section was aimed at protecting children.
“Section 294 serves a legal purpose for the child to know his or her origins‚” she said.
Ozah argued that adoption allowed for adopted children to access information about their origins when they reached the age of 18. This‚ she argued‚ was not the case in surrogacy as the commissioning parent could withhold that information from the child.
Jordaan said there should not be fear that surrogacy would have a negative impact on the child’s psychological well-being and development.
“Whether there is a link or not‚ it won’t impact on the child‚” he contended.
Jordaan further argued that the woman had a right to access health care and that it was the government’s duty to provide such.
“The government has a duty not to stop from accessing health care. Donor gametes have been available for over a generation. For government to stop it would be an infringement of access to health care.”
Judgment was reserved.
Surrogacy law 'discriminates based on infertility'
This was advocate Donrich Jordaan’s argument in the Constitutional Court on behalf of a woman who cannot bear children.
The woman‚ a divorcee‚ has been battling to become a mother for more than 14 years. She underwent eighteen unsuccessful in vitro fertilisation (IVF) procedures in an attempt to fall pregnant. Gametes from anonymous male and female donors were used in all the procedures.
She then turned to surrogacy but was faced with Section 294 of the Children’s Act‚ which deems a surrogate motherhood agreement invalid unless the gametes of at least one of the commissioning parents are used to conceive the child that will be carried by the surrogate.
This excludes single people who are barren and couples where both partners are infertile.
On Tuesday the woman‚ who cannot be named by order of the court‚ asked the Constitutional Court to confirm an order of the Pretoria High Court last year declaring Section 294 inconsistent with the constitution and invalid.
The Department of Social Development is appealing against the High Court’s ruling.
Jordaan argued that the woman was discriminated against based on her infertility.
“It infringes on a person’s dignity…included in the right to dignity is also a right to life‚” Jordaan said.
He said while the state provided options through which the woman could have children ‚ the only legal constraint that limited her from accessing some of these options was the genetic requirement.
Advocate Nelly Cassim‚ on behalf of the Department of Social Development‚ argued that the genetic link must be present in order for surrogacy to be valid.
“To sever the section defeats the government’s purpose for which the law was introduced.
“A genetic link is pivotal to the law of surrogacy. Without Section 294‚ there is no law of surrogacy‚” Cassim argued.
Karabo Ozah for the Centre for Child Law‚ which joined the case as a friend of the court‚ argued that the section was aimed at protecting children.
“Section 294 serves a legal purpose for the child to know his or her origins‚” she said.
Ozah argued that adoption allowed for adopted children to access information about their origins when they reached the age of 18. This‚ she argued‚ was not the case in surrogacy as the commissioning parent could withhold that information from the child.
Jordaan said there should not be fear that surrogacy would have a negative impact on the child’s psychological well-being and development.
“Whether there is a link or not‚ it won’t impact on the child‚” he contended.
Jordaan further argued that the woman had a right to access health care and that it was the government’s duty to provide such.
“The government has a duty not to stop from accessing health care. Donor gametes have been available for over a generation. For government to stop it would be an infringement of access to health care.”
Judgment was reserved.
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