South Africa: Genetic-link requirement for surrogacy is constitutional

February 14, 2017

Congratulations to Ronaldah Lerato Karabo Ozah and the Centre for Child Law at the University of Pretoria, a law clinic which was accepted and thanked as amicus curiae in this recent decision:

AB and Surrogacy Advisory Group v. the Minister of Social Development (Centre for Child Law as Amicus Curiae)  CCT 155/15, decided November 29, 2016 (Constitutional Court of South Africa)  Decision online.

On 29 November 2016, the South African Constitutional Court found that the “genetic-link requirement” for surrogate motherhood agreements is constitutionally valid and does not unjustifiably limit the rights of persons who cannot contribute their own gametes for surrogate motherhood agreements. The decision follows the challenge by the Applicants to section 294 of the Children’s Act (38 of 2005) which requires that the gametes of at least one of the commissioning parents must be used for the conception of a child to be born from a surrogate motherhood agreement.

The first applicant was “AB,” a woman in her late fifties who had exhausted medical possibilities to conceive and carry a child to term, whether naturally with her former husband or through in vitro fertilization with personal or anonymous donor ova or sperm. Turning to surrogacy, but unable to supply parental sperm or ova, she and the Surrogacy Advisory Group challenged South Africa’s legal requirement of one parental gamete.  The Children’s Act (ch. 19, sec. 294) provides as follows:

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.”

Previously, in August 2015, the High Court at Gauteng had held that this section “is inconsistent with the Constitution for violating rights including equality, privacy, dignity, the right to bodily and psychological integrity, and the right to health care of persons who are unable to contribute a gamete or gametes in the surrogacy arrangement.”  The matter was then referred to the Constitutional Court for confirmation of constitutional invalidity.

The decision of the Constitutional Court was split 7/4, with the majority of the court finding that the provision does not unjustifiably limit the rights of the applicants to equality, reproductive autonomy, reproductive health and privacy (paras 275-324). The Constitutional Court found that section 294 of the Children’s Act was rationally connected to its purpose, which is to safeguard the genetic origin of the child for the best interests of the child. (para. 288)   Furthermore, the Court was of the view that the High Court judgment had over-emphasised the interests of the commissioning parent(s) and overlooked the purpose of the impugned provision and the best interests of children. (para.293)   Although the Constitutional Court did not go so far as to proclaim a right to know one’s genetic origin, it acknowledged that children born of surrogate motherhood agreements do have an interest that needs to be protected by laws that will ensure that they can know at least one of their genetic parents.

References online:

AB and Surrogacy Advisory Group vs. Minister of Social Development, Nov. 29, 2016 (Constitutional Court of South Africa) Full text:  2016 Constitutional Court decision. 

Previous decision, 2015: AB and Surrogacy Advisory Group vs. Minister of Social Development [2015] ZAGPPHC 580 (High Court of South Africa).  2015 High Court decision  Summary by Godfrey Kangaude for: Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts.  228 pages, free from PULP.

The Children’s Act 38 of 2005, South Africa, with later amendments,  is online here.

Amicus curiae submission by the Centre for Child Law, University of Pretoria  is online here.

AFRICA: Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts – 54 case summaries

February 14, 2017


by: Godfrey Kangaude, Onyema Afulukwe, Guy-Fleury Ntwari, et al.
Foreword by Prof. Charles G. Ngwena
PULP (Pretoria University Law Press) 2017
Download entire 228 page book online.
Online edition with links to decisions
Printable flyer with Table of Contents
Previous volumes

Reproductive and sexual rights, which are guaranteed in constitutions and in international and regional human rights treaties, have no impact if they are not recognized and enforced by national-level courts. Legal Grounds: Sexual and Reproductive Rights in Sub-Saharan African Courts Volume III continues to provide much-needed information about whether and how national courts of African countries apply constitutional and human rights to protect reproductive and sexual rights. The case summaries, significance sections, and thematic highlights serve as useful resources for those seeking to further develop litigation, advocacy, and capacity- building strategies.

Like its predecessors, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts – Volume III is a tool for organizations, individuals, and institutions of learning. The scope of this third volume has been widened beyond Commonwealth African countries to include cases from Francophone countries, while focusing more exclusively on court decisions related to reproductive and sexual health. This compelling publication contributes towards a knowledge base of court decisions that bear directly or indirectly on the exercise of reproductive and sexual health as constitutional and human rights in Africa.
228 page book onlinePrevious volumes Printable flyer with Table of Contents.

Foreword, Introduction, Acknowledgments
Children and Adolescents
—Child, Forced and Early Marriage
—Female Genital Mutilation legal-grounds/
—Sexual Abuse, Assault and Violence
—Consensual Sexual Conduct
—Student Pregnancy
—Maternal Health Care and Services
Abortion and Fetal Interests
—Wrongful Birth or Life
Adoption and Surrogacy
Gender, Sexuality, Women and Discrimination
—Disability, Sexuality and Criminal Law
—Women and Criminal Law
—Legal Recognition of Intersexuality
—Gender Identity
—Sexual Orientation
—Recognition of LGBTIQ Advocacy and Groups
—Access to Treatment
—Criminalisation of Transmission
—Forced Sterilization
—Discrimination in Employment
Francophone Africa / L’Afrique Francophone
—Adultery, Polygamy, Infanticide
Appendices – Table of Cases, Online Resources, Endnotes

Child Marriage: Legal and Socio-Cultural Aspects, by Godfrey Kangaude
Adolescent Consensual Sexual Conduct, by Godfrey Kangaude
Sexual Abuse, Assault and Violence, by Victoria Balogun
Maternal Health Care and Services, by Tinyade Kachika
Abortion and Fetal Interests, by Onyema Afulukwe
Adoption and Surrogacy, by Ronaldah Lerato Karabo Ozah
Gender, Sexuality, Women and Discrimination, by MaryFrances Lukera
Criminalisation of HIV Non-Disclosure, Exposure and Transmission, by Jacinta Nyachae
Sexual and Reproductive Rights of Women Living with HIV, by Ebenezer Durojaye
Towards Respect for Human Diversity, by Godfrey Kangaude

COUNTRIES:  Benin, Botswana, Kenya, Namibia, Niger, Nigeria, Rwanda, South Africa, Uganda,  Zambia, Zimbabwe

228 page book online.  Previous volumes.
Printable flyer with Table of Contents.