Tussle for family ties
The genetic link required in a surrogate motherhood agreement infringes on human dignity and discriminates based on infertility.
This was Donrich Jordaan SC's argument on behalf of a woman who cannot bear children.
The woman, a divorcee, has been battling to become a mother for more than 14 years. She underwent 18 unsuccessful in-vitro fertilisation procedures in an attempt to fall pregnant. Gametes from anonymous donors were used.
She then turned to surrogacy, but was faced with section 294 of the Children's Act, which deems a surrogate motherhood agreement invalid unless the gametes of at least one of the commissioning parents are used to conceive the child that will be carried by the surrogate.
This excludes single people who are barren and couples where both partners are infertile.
The woman, who cannot be named by order of the court, asked the Constitutional Court yesterday to confirm an order of the Pretoria High Court last year declaring section 294 inconsistent with the constitution and invalid.
The Department of Social Development is appealing the ruling.
Jordaan argued that the woman was discriminated against based on her infertility.
"It [the genetic link requirement] infringes on a person's dignity. included in the right to dignity is also a right to life," Jordaan said.
He said though the state provided options through which the woman could have children, the only legal constraint that limited her from accessing some of these options was the genetic requirement.
Nelly Cassim SC, on behalf of the department , argued that the genetic link must be present in order for surrogacy to be valid.
"To sever the section  defeats the purpose for which the law was introduced. A genetic link is pivotal. Without section 294 there is no law of surrogacy," Cassim argued.
Karabo Ozah, for the Centre for Child Law, which joined the case as a friend of the court, argued that the section was aimed at protecting children.
"Section 294 serves a legal purpose for the child to know his or her [genetic] origins," she said.
Ozah argued that adoption allowed for children to access information about their origins when they reached 18. This, she argued, was not the case in surrogacy as the commissioning parent could withhold that information.
Jordaan said there should be no fear that surrogacy would have a negative impact on the child's well-being and development.
"Whether there is a [genetic] link or not, it won't impact on the child," he contended.
Jordaan further argued that the woman had a right to access healthcare and that it was the government's duty to provide it.
"The government has a duty not to stop [the woman] from accessing healthcare. For government to stop it would be an infringement of access to health care."
Judgment was reserved.