KB and Another v Minister of Social Development (966/2022) [2023] ZAMPMBHC 12 (20 February 2023)

KB and Another v Minister of Social Development (966/2022) [2023] ZAMPMBHC 12 (20 February 2023)

The court held that section 294 of the Children’s Act is not unconstitutional for failing to provide for a genetic link between siblings in surrogacy arrangements. The applicants failed to provide a substantive basis for the alleged violation of the minor child's rights, relying on bald assertions rather than concrete evidence. The purpose of section 294 is to ensure a genetic link between the child and at least one parent, not between siblings, and this legislative choice is rationally connected to the public good of protecting the child's interests. The court found no constitutional basis to interfere with the legislature's chosen measure and rejected the applicants' arguments for...

Citation
[2023] ZAMPMBHC 12
Parties
Applicant: KB; Applicant: HBB; Respondent: Minister of Social Development; Amicus Curiae: Donrich Thaldar; Amicus Curiae: Bonginkosi Shozi
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
20 February 2023
Case Number
966/2022
Procedural Posture
Constitutional Application / Final Judgment
Outcome
Application dismissed; no order as to costs.
Judges
Sibuyi
Legal Topics
Surrogacy, Genetic Link Requirement, Children S Act, Best Interests of Child, Constitutional Challenge
Family and Children Constitutional Law Surrogacy Genetic Link Requirement Children S Act Best Interests of Child Constitutional Challenge

Case Brief

Summary, issues, holding and outcome

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Parties

KB

Applicant

HBB

Applicant

Minister of Social Development

Respondent

Donrich Thaldar

Amicus Curiae

Bonginkosi Shozi

Amicus Curiae

Procedural Posture

Constitutional Application / Final Judgment

Legal Issues

  1. 1 Whether section 294 of the Children’s Act is unconstitutional for failing to allow a genetic link between siblings in surrogacy arrangements.
  2. 2 Whether the minor child's best interests require a genetically linked sibling and if section 294 unjustifiably infringes those interests.
  3. 3 Whether the High Court has jurisdiction to hear the application brought on behalf of the minor child.

Ratio Decidendi

The court held that section 294 of the Children’s Act is not unconstitutional for failing to provide for a genetic link between siblings in surrogacy arrangements. The applicants failed to provide a substantive basis for the alleged violation of the minor child's rights, relying on bald assertions rather than concrete evidence. The purpose of section 294 is to ensure a genetic link between the child and at least one parent, not between siblings, and this legislative choice is rationally connected to the public good of protecting the child's interests. The court found no constitutional basis to interfere with the legislature's chosen measure and rejected the applicants' arguments for...

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application is dismissed.
  • There is no order as to costs.