No to 'designer children' - Bathabile Dlamini

2016-11-30 20:32


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Johannesburg – A woman who tried unsuccessfully to have a baby through IVF, has been prevented from using surrogacy following a Constitutional Court ruling, the social development department said on Wednesday.

The Constitutional Court on Tuesday overturned a ruling by the High Court in Pretoria declaring Section 294 of the Children’s Act invalid.

The section states that no surrogate motherhood agreement is valid unless a child’s conception happens using the gametes (reproductive cells) of both commissioning parents. If this is not possible due to medical, biological, or other valid reasons, the gamete of at least one of the commissioning parents must be used. In cases where the parent-to-be is single, the gamete has to come from that individual.

The woman went through 18 in vitro fertilisation (IVF) cycles between 2001 and 2011, all of which were unsuccessful. In 2009, she was advised to look into surrogacy as a means to have a child.

She was put in touch with a potential surrogate mother through a surrogacy programme, the department said in a statement.

However, she was informed that she could not enter into a surrogacy agreement without contributing one of her own gametes to the process.

She was made aware that as a single woman incapable of donating a gamete, she could not legally enter into a surrogacy agreement because of section 294 of the act.

She then approached the High Court in Pretoria. In a ruling last year, it declared the section constitutionally invalid and said it unjustifiably violated her rights.

Social Development Minister Bathabile Dlamini challenged the ruling.

She said not only were the woman’s rights at issue, but also the rights of the child to be created by surrogate mother and donor. The prospective child had the right to know its genetic origins, Dlamini said.

As a single woman, she was unable to donate her own ova. The only way for her to proceed was to use both donor ova and donor sperm, Dlamini said.  

The high court referred the matter to the Constitutional Court, which overturned the ruling.

Allowing a “single infertile person to create a child with no genetic link to her would result in the creation of a designer child,” Dlamini argued.

It was imperative to protect the rights of children who would be born with no genetic link to at least one of their parents.  

She said she wanted to prevent the commercialisation of surrogacy in South Africa. She said the country’s adoption laws catered for people unable to have children of their own.



Read more on:    bathabile dlamini  |  johannesburg

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