SA surrogacy law challenged

15 October 2014 - 03:29 By Aarti J Narsee

In the first case of its kind, a Cape Town woman is challenging South Africa surrogacy laws, which prevent her from having the baby she so desperately wants.

The woman, whose identity is protected by a court order, asked the Pretoria High Court yesterday to nullify  the requirement that there be a genetic link between the baby and at least one of the people commissioning the surrogate pregnancy.

The requirement is a provision of the Children’s Act of 2005 allows surrogate births only where if at least one  contributes their gametes.

If the Cape Town woman’s application to the court succeeds, it will end her 13-year battle to have a child.

The act makes surrogacy illegal for single people who are barren and for couples  both of whom are infertile, even if there is  a sibling or other relative willing to donate an egg or sperm.

Since 2001, the 56-year-old woman has undergone 18 in vitro fertilisations and has had two miscarriages.

She claims that the requirement of of a genetic link violates a number of her constitutional rights, including those of equality and human dignity, as well as those of others in her position.

She had used her husband’s sperm for the in vitro fertilisations until they divorced.

The woman has been joined in her court application joined in the court bid by the non-profit organisation the Surrogacy Advisory Group, which asserts that the requirement of a genetic link is a human rights violation and is unconstitutional.

The respondent is Minister of Social Development Bathabile Dlamini, who is opposing the application.

The University of Pretoria’s Centre for Child Law has also joined the application. It believes that that the requirement violates constitutional rights but recommends that it be retained except in “exceptional circumstances”.

Dlamini said the genetic link requirement was justified and denied it infringed constitutional rights.  She said adoption was an option for the woman and others in her position. Additional reporting by Nomahlubi Jordaan

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