DW (11432/2021P), Ex parte [2022] ZAKZPHC 11 (8 April 2022)

DW (11432/2021P), Ex parte [2022] ZAKZPHC 11 (8 April 2022)

The court held that section 294 of the Children's Act is clear in its requirement that, for a valid surrogate motherhood agreement involving a single commissioning parent, the gamete used must be that of the commissioning parent. The applicant's proposed interpretation, allowing the use of a donor gamete with identity disclosure, is inconsistent with both the wording and the purpose of the section as established by the Constitutional Court in AB. The court further found that granting a declaratory order in this ex parte application would not bind interested parties such as the Minister of Social Development, rendering such an order ineffective. Accordingly, the application was dismissed.

Citation
[2022] ZAKZPHC 11
Parties
Applicant: DW
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
8 April 2022
Case Number
11432/2021P
Procedural Posture
Ex Parte Application / Application for Declaratory Order
Outcome
Application dismissed.
Judges
Ploos van Amstel
Legal Topics
Surrogate Motherhood, Children S Act, Declaratory Order, Genetic Link Requirement
Family and Children Surrogate Motherhood Children S Act Declaratory Order Genetic Link Requirement

Case Brief

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Parties

DW

Applicant

Procedural Posture

Ex Parte Application / Application for Declaratory Order

Legal Issues

  1. 1 Whether section 294 of the Children's Act permits a single commissioning parent to use the gamete of a donor who consents to disclosure of identity.
  2. 2 Whether a declaratory order can be granted in the absence of participation by interested parties such as the Minister of Social Development.

Ratio Decidendi

The court held that section 294 of the Children's Act is clear in its requirement that, for a valid surrogate motherhood agreement involving a single commissioning parent, the gamete used must be that of the commissioning parent. The applicant's proposed interpretation, allowing the use of a donor gamete with identity disclosure, is inconsistent with both the wording and the purpose of the section as established by the Constitutional Court in AB. The court further found that granting a declaratory order in this ex parte application would not bind interested parties such as the Minister of Social Development, rendering such an order ineffective. Accordingly, the application was dismissed.

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.