Surrogacy Advisory Group v Minister of Health (50683/2020) [2022] ZAGPPHC 558; [2022] 4 All SA 187 (GP); 2023 (1) SA 241 (GP) (19 July 2022)

Surrogacy Advisory Group v Minister of Health (50683/2020) [2022] ZAGPPHC 558; [2022] 4 All SA 187 (GP); 2023 (1) SA 241 (GP) (19 July 2022)

The court held that the applicant was not compelled to bring the challenge under PAJA, as the regulations were tested against constitutional rights beyond administrative justice. The psychological evaluation requirement for known donors and recipients, including married couples and permanent partners, was found to infringe the rights to equality, privacy, and access to healthcare, with no sufficient justification provided by the respondent. The prohibition on preimplantation sex selection was held to violate the right to bodily and psychological integrity and privacy, as it allowed for prenatal sex selection but not preimplantation, without rational justification. The blanket prohibition...

Citation
[2022] ZAGPPHC 558
Parties
Applicant: Surrogacy Advisory Group; Respondent: Minister of Health
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 July 2022
Case Number
50683/2020
Procedural Posture
Constitutional Application / Final Judgment
Outcome
Application granted. Impugned regulations declared unconstitutional and invalid, with orders suspended to allow for legislative amendment.
Judges
WJ du Plessis
Legal Topics
Regulation of Artificial Fertilisation, Bodily Integrity, Privacy Rights, Equality Discrimination, Subsidiarity Principle, Freedom of Expression
Constitutional Law Family and Children Administrative Law Regulation of Artificial Fertilisation Bodily Integrity Privacy Rights Equality Discrimination Subsidiarity Principle +1 more

Case Brief

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Parties

Surrogacy Advisory Group

Applicant

Minister of Health

Respondent

Procedural Posture

Constitutional Application / Final Judgment

Legal Issues

  1. 1 Whether the psychological evaluation requirement for known gamete donors and recipients infringes constitutional rights.
  2. 2 Whether the prohibition on preimplantation sex selection is unconstitutional.
  3. 3 Whether the prohibition on disclosure of certain facts relating to artificial fertilisation violates privacy and freedom of expression.

Ratio Decidendi

The court held that the applicant was not compelled to bring the challenge under PAJA, as the regulations were tested against constitutional rights beyond administrative justice. The psychological evaluation requirement for known donors and recipients, including married couples and permanent partners, was found to infringe the rights to equality, privacy, and access to healthcare, with no sufficient justification provided by the respondent. The prohibition on preimplantation sex selection was held to violate the right to bodily and psychological integrity and privacy, as it allowed for prenatal sex selection but not preimplantation, without rational justification. The blanket prohibition...

Court Disposition

Application granted. Impugned regulations declared unconstitutional and invalid, with orders suspended to allow for legislative amendment.

Orders

  • Regulation 7(j)(ii) of the Regulations Relating to the Artificial Fertilisation of Persons is declared unconstitutional and invalid. Declaration suspended for 24 months.
  • During suspension, Regulation 7(j)(i) is to be read as excluding married couples or permanent domestic life-partners from the psychological evaluation requirement.