AB and Another v Minister of Social Development As Amicus Curiae: Centre for Child Law (40658/13) [2015] ZAGPPHC 580; [2015] 4 All SA 24 (GP); 2015 (10) BCLR 1228 (GP); 2016 (2) SA 27 (GP) (12 August 2015)

AB and Another v Minister of Social Development As Amicus Curiae: Centre for Child Law (40658/13) [2015] ZAGPPHC 580; [2015] 4 All SA 24 (GP); 2015 (10) BCLR 1228 (GP); 2016 (2) SA 27 (GP) (12 August 2015)

Section 294 of the Children’s Act, which requires a genetic link between commissioning parent(s) and the child in surrogacy agreements, is unconstitutional. The requirement unfairly discriminates against conception-infertile persons, infringes their rights to equality, dignity, reproductive autonomy, privacy, and access to healthcare, and lacks a rational connection to a legitimate governmental purpose. The differentiation between surrogacy and IVF is arbitrary, as double-donor gametes are permitted in IVF but not in surrogacy, without justification. The legislative purpose of regulating surrogacy is to enable commissioning parents to acquire parental rights without adoption; the genetic...

Citation
[2015] ZAGPPHC 580
Parties
Applicant: AB; Applicant: Surrogacy Advisory Group; Respondent: Minister of Social Development; Appellant: Centre for Child Law
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 August 2015
Case Number
40658/13
Procedural Posture
Constitutional Challenge / First Instance Judgment
Outcome
Section 294 of the Children’s Act is declared inconsistent with the Constitution and invalid.
Judges
AC Basson
Legal Topics
Genetic Link Requirement, Surrogacy Motherhood Agreements, Equality Rights, Reproductive Autonomy, Human Dignity, Access to Healthcare
Constitutional Law Family and Children Genetic Link Requirement Surrogacy Motherhood Agreements Equality Rights Reproductive Autonomy Human Dignity Access to Healthcare

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Parties

AB

Applicant

Surrogacy Advisory Group

Applicant

Minister of Social Development

Respondent

Centre for Child Law

Appellant

Procedural Posture

Constitutional Challenge / First Instance Judgment

Legal Issues

  1. 1 Does section 294 of the Children’s Act, which requires a genetic link between commissioning parent(s) and child in surrogacy, violate constitutional rights?
  2. 2 Is the genetic link requirement rationally connected to a legitimate governmental purpose?
  3. 3 Does the genetic link requirement constitute unfair discrimination against conception-infertile persons?

Ratio Decidendi

Section 294 of the Children’s Act, which requires a genetic link between commissioning parent(s) and the child in surrogacy agreements, is unconstitutional. The requirement unfairly discriminates against conception-infertile persons, infringes their rights to equality, dignity, reproductive autonomy, privacy, and access to healthcare, and lacks a rational connection to a legitimate governmental purpose. The differentiation between surrogacy and IVF is arbitrary, as double-donor gametes are permitted in IVF but not in surrogacy, without justification. The legislative purpose of regulating surrogacy is to enable commissioning parents to acquire parental rights without adoption; the genetic...

Court Disposition

Section 294 of the Children’s Act is declared inconsistent with the Constitution and invalid.

Orders

  • Section 294 of the Children’s Act, Act 38 of 2005, is declared inconsistent with the Constitution and invalid.
  • The respondent is ordered to pay the costs of the application, including costs for two counsel and qualified costs of all experts for the second applicant, on an attorney and client scale.