With the growing use of assisted reproductive technologies, the use of surrogacy has become increasingly popular among those wanting to conceive.
With the growing use of assisted reproductive technologies, the use of surrogacy has become increasingly popular among those wanting to conceive. Under South African law, various legal questions have arisen relating to the constitutional rights of children born through surrogacy practices.
Surrogacy involves a practice where a woman carries and gives birth to another woman’s child. This practice can be initiated in multiple ways, including in vitro fertilisation, intrauterine insemination, using an embryo the parents created by combining their own gametes (their own embryos) or by using a donor egg or spermatozoa where necessary. Surrogacy provides thousands of interfile individuals the chance to build a family, and as mentioned in KB v Minister of Social Development, gives life to the right of a family life found in Article 16 of the Universal Declaration of Human Rights.
The appellants in the case, KB (the wife) and HBB (the husband) brought an application to the Mpumalanga division of the high court seeking an order to declare section 294 of the Children’s Act inconsistent with the Constitution, in so far as it prohibits a child born of a surrogacy agreement the opportunity to be genetically linked to their already-born sibling. Section 294 provides for the “genetic origin of the child” and states that no surrogate motherhood agreement may be valid unless the conception of the child contemplated in the agreement is effected by the use of gametes of both commissioning parents, or if that is not possible because of biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or where the commissioning parent is a single parent, the gamete of that person. The appellants applied to the court to have “or where the genetic origin of the child is the same with that of any of her siblings” read into the end of the provision.
In the case of KB v Minister of Social Development, KB struggled with uterine growths, making it difficult for her to fall pregnant naturally. The couple tried to conceive for five years and had numerous unsuccessful attempts at falling pregnant through vitro fertilisation (IVF) and intrauterine insemination (IUI). Their medical practitioner recommended that they conceive using gametes and proceeded to have seven embryos fertilised. In KB’s first transfer, the child, ESB, was born at 33 weeks. Thereafter, and wanting to provide ESB with a sibling, the couple tried again, and during her second transfer, the child was born at six months, but resulted in the removal of KB’s uterus. She was unable to carry her remaining embryos and resulted in the appellants having to consider a surrogate motherhood process. At the same time, HBB had a previous vasectomy that was reversed and was diagnosed with testicular cancer, which was then medically treated. It was therefore physically impossible to provide for gametes with the genetics of either parent. The appellants had then found a surrogate who was able to assist them and prepared a surrogate motherhood agreement to enforce the double donor surrogacy to be signed once the court granted the order holding section 249 of the Children’s Act unconstitutional.
The minister of social development opposed the application and raised several issues with the merits of the matter and relief sought by the appellants. First, the minister found that the appellants had failed to identify the rights of the minor child and the violation of those rights. Second, the minister noted that the constitutional invalidity of section 249 has already been decided in the prior case of AB and Another v Minister of Social Development. Third, the minister argued that the proposed “reading-in” of section 249 violates the doctrine of separation of powers, as the remedy is one that the legislature and executive should determine. The high court dismissed the application on the basis that the appellants had not identified a right which is violated and the basis of such violation. The high court held that the section in question had nothing to do with the right of a minor child to have a sibling with a genetic link and that the removal of the genetic link requirement (or an exception to such requirement) would be a departure from the chosen policy position.
On the other hand, the appellants relied on section 28 of the Constitution which gives effect to the rights of children. This section provides children with several fundamental rights, including that of a name, nationality and family care or parental care. Section 28(2) specifically provides for the consideration of the best interests of the minor child. The appellants also relied on the right to equality as provided for in section 9 of the Constitution and the right to human dignity as provided for in section 10 of the Constitution. The appellants argued that the rights of both their children (the one unborn and one already born), which are envisaged in section 29, section 9 and section 10 of the Constitution, were being violated by section 249 of the Children’s Act. KB differentiates her facts from the facts of AB and Another constitutional court decision in 2017. Her legal team argued that the genetic-link requirement is in the child’s best interests and should therefore be extended to instances of a shared genetic link between siblings. Professor Donrich Thaldar filed submissions in the matter and provided that the genetic link requirement found in section 294 causes pain and suffering to infertile persons as surrogacy is impossible when both parents are unable to contribute gametes.
The supreme court of appeal (SCA) dealt with the matter by asking three important questions:
- Is there a right to have a genetically-linked sibling (and the source of such right)?
- How it relates to surrogacy as provided in chapter 19 of the Children’s Act
- Whether section 249 should be declared invalid to the extent that it is inconsistent with the Constitution.
Chapter 19 of the Children’s Act regulates surrogate motherhood in South Africa. Before the promulgation of Chapter 19, all surrogacy agreements were regulated through commercial law and remained uncertain. This uncertainty called for an inquiry into surrogate motherhood by the South African Law Commission, which led to the enactment of section 294. The plain language of the provision seeks to create a bond between the child and at least one commissioning parent.
In the case of AB v Minister of Social Development, the court highlights that the purpose of the provision is to assist fertile parents who are unable to naturally conceive a child because of various biological, medical or other reasons, and to use their gametes (or one of their gametes) to conceive the child. This is confirmed in the judgment of the SCA as the court notes that the purpose, text and context of the legislation is to protect the unborn child by ensuring that the genetic origin of the child was connected to at least one of the parents. This very purpose, text and context is not supported by the child obtaining its genetic origin from its siblings. As per paragraph 20 of the judgment, the court touched on the crux of the matter, which is that the interests of the child protected in terms of section 249 are not the same as those of a child already born. The relief sought by the appellants is therefore not supported by the purpose of section 249.
In this regard, the court highlighted that the means chosen to enact the purpose of section 249, was one chosen by the legislature and therefore courts cannot interfere with that choice if the result would lead to a different purpose and means. This would result in a violation of the separation of powers. The SCA further held that it is bound by the constitutional court’s interpretation of section 249 in the case of AB v Minister.
The appellants argued that section 249 infringes upon the rights of the children involved in the matter. As part of their argument, the appellants noted that having a biological sibling may be crucial in the instance of illness that the child may face later in life. However, in its judgment, the SCA rejected the appellants’ argument and noted that there are no rights that can be constitutionally sourced for a minor child to have a genetically-related sibling. Furthermore, the SCA rejected the argument that the child’s rights in terms of section 9 have been violated as the appellants failed to establish how the minor child would be treated differently.
The crux of this case does not involve the right of a genetically-linked sibling but instead highlights the right of one to have a child born through surrogacy when both the mother and father are unable to contribute a gamete. It is in this aspect that the constitutional rights to dignity and equality are infringed. The Constitution provides that South Africa belongs to all who live in it, including parents who struggle to conceive naturally — and therefore we are all equally deserving of dignity and equality. With an increase in infertility and a rise in the use of surrogacy, the legal framework around surrogacy should respond to this instance rather than shying away from addressing it.
As it stands, when both mother and father cannot contribute a gamete for the unborn child’s surrogacy, such an agreement becomes legally invalid and impossible. In reality, this cannot be the case. The nature and purpose of a surrogacy agreement is to allow infertile individuals the opportunity to experience parenthood. However, reading in a “sibling-link clause” as suggested by KB, does not provide the legal solution necessary to give the courts the required freedom to administer justice in the child’s best interests based on the facts before them.
This nature and purpose should be mirrored in the applicable legislation to allow room for the reading-in of future reproductive processes and exceptions such as the case in this matter. Allowing for instances of double-donor surrogacy where good cause is shown would better reflect our constitutional values.
Charlise Finch is a candidate attorney at Herold Gie Attorneys. The article was co-authored by the firm’s director, Kaamilah Paulse, who is also the matrimonial and family law attorney at the firm.