South Africa Case Law

(a) Werner van Wyk and Others v Minister of Employment and Labour (b) Commission for Gender Equality and Another v Minister of Employment and Labour and Others

The challenged BCEA and UIF provisions unlawfully differentiate between birth mothers and other parents, and the age cap on adoption-related leave for children below two years is also unjustified. The discrimination impairs equality and human dignity and cannot be saved by the Minister’s reliance on administrative or budgetary considerations. The constitutional invalidity should be confirmed, suspended for 36 months, with interim reading-in for the BCEA and deferred supplementary relief for the UIF Act and the age-cap issue if needed.

Source excerpt

• Maternity leave
• Parental leave
• Adoption leave
• Commissioning parental leave
• Surrogacy
• Unfair discrimination

KB & Another v Minister of Social Development (462/23)

KB & Another v Minister of Social Development (462/23) [2024] ZASCA 54; 2024 (5) SA 30 (SCA) (19 April 2024)

Court

Supreme Court of Appeal

Case number

462/23

Judges

Mokgohloa, Mothle, Mabindla-Boqwana, Kgoele, Bloem

The Supreme Court of Appeal held that section 294 of the Children’s Act is constitutionally valid and dismissed an appeal about a genetically linked sibling in surrogacy.

• Surrogacy
• Children S Rights
• Genetic Link Requirement
• Reading In Remedy
• Best Interests Of Child
• Childrens-rights

KB and Another v Minister of Social Development (966/2022)

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

Court

Mbombela High Court, Mpumalanga

Case number

966/2022

Judge

Sibuyi

The High Court dismissed a challenge to section 294 of the Children’s Act seeking a sibling genetic-link exception in surrogacy.

• Surrogacy
• Genetic Link Requirement
• Children S Act
• Best Interests Of Child
• Constitutional Challenge
• Genetic-link-requirement

MCM and Another (28084/22), Ex parte

MCM and Another (28084/22), Ex parte [2022] ZAGPPHC 712 (26 September 2022)

Court

North Gauteng High Court, Pretoria

Case number

28084/22

Judge

Van der Schyff

The High Court dismissed an ex parte bid to authorise IVF and embryo cryopreservation before a surrogate mother was identified.

• Surrogacy Motherhood Agreement
• Artificial Fertilisation
• Regulations Relating To Artificial Fertilisation
• Declaratory Relief
• Children Act
• National Health Act

Applications for the Confirmation of three Surrogate Motherhood Agreements (2011/153, 2011/154, 2011/679 , 2011/1314, 2011/1315, 2011/1316), Ex parte

Applications for the Confirmation of three Surrogate Motherhood Agreements (2011/153, 2011/154, 2011/679 , 2011/1314, 2011/1315, 2011/1316), Ex parte [2011] ZAGPJHC 9; 2011 (6) SA 22 (GSJ) (1 March 2011)

Court

South Gauteng High Court, Johannesburg

Case number

2011/153

Judges

W L Wepener, M Victor

The court postponed three surrogate motherhood applications sine die for missing facts, unreliable reports, and non-compliance with the Children’s Act.

• Surrogate Motherhood Agreements
• Children Act
• Court As Upper Guardian
• Practice Directive
• Compensation In Surrogacy
• Screening Of Commissioning Parents