Surrogacy: The proposed law against the "genetic-link requirement" and the ConCourt ruling


Update: 10 September 2018.

On 29 November 2016, the Constitutional Court found that the “genetic-link requirement” for surrogacy is, after all, constitutionally valid. Read more about the ruling here. In response, Robynne Friedman, the chief advisor of the Surrogacy Advisory Group, issued this statement: "Surrogacy is a wonderful gift that a woman can give another couple that cannot carry a pregnancy themselves. We are disappointed that the majority of the Constitutional Court has refused to stand up to protect infertile people from discriminatory legislation." The Constitutional Court ruled that the "State has a duty to ensure that children are guaranteed rights, including the right to know their genetic origins."

It isn’t cast in stone yet but a major hurdle has been cleared: the Pretoria High Court recently ruled that the genetic-link requirement in surrogacy is unconstitutional.

The matter is now before the Constitutional Court and if it upholds the decision there will be far-reaching implications for people wishing to have babies via a surrogate.

Here’s what’s going on:

The Children’s Act of 2005 allows surrogacy only when at least one of the commissioning parents had contributed eggs or sperm. This was challenged in the High Court by a 56-year-old single woman who has been trying for 14 years to have a child.

After 18 rounds of in-vitro fertilisation (IVF) and two miscarriages, she decided to try surrogacy. But her eggs are no longer viable and she has no partner to contribute sperm.

In papers she claimed the requirement of a genetic link in surrogacy was against her constitutional rights, including those related to equality and human dignity.

Judge Anneli Basson agreed. The genetic-link requirement violated human rights on a “very personal and intimate level and effectively puts people’s lives on hold,” she said. “This situation begs immediate relief.”

In her judgment she said, “A family cannot be defined with reference to the question whether a genetic link between the parent and the child exists. More importantly, our society does not regard a family consisting of an adopted child as less valuable or less equal than a family where children are the natural or genetically linked children of the parents.

“The legislature should therefore take due cognisance of the advances made in fertility and reproductive technology and with that comes the obligation to redefine the traditional view of the family.”

The ruling should be celebrated, says Tertia Albertyn, founder of Nurture, SA’s largest egg donation programme, and an advocate of surrogacy. “Infertility is an insidious disease that affects every aspect of your life. The way the law currently stands means that people who were already suffering so much are made to suffer more by the law excluding them from accessing surrogacy as a way of having a baby.”

Robynne Friedman, chief adviser for the SA Surrogacy Advisory Group and an attorney specialising in surrogacy law, says if passed the new law will have a profound effect on many people – including couples where both the man and woman are infertile, gay couples and older couples.

Adoption in South Africa is bogged down by bureaucracy and is often a long and frustrating process. Non-genetic link surrogacy will be an alternative. “Surrogacy is also a wonderful gift a woman can give a couple who cannot carry a pregnancy,” Robynne says. And she knows what she’s talking about.

Robynne’s story: “We had a baby via a surrogate”

Diane’s story: I was a surrogate – after having twins via artificial insemination

Q&A: All you need to know about surrogacy

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