Childless couples thrown a lifeline

14 August 2015 - 02:05 By Aarti J Narsee and Jerome Cornelius


One woman's 14-year battle with infertility has led to couples unable to have children now being able to start a family using surrogacy - without one of the partners having to give eggs or sperm to the birth mother. In the first-of-its-kind case, a Cape Town woman successfully challenged a provision of the Children's Act of 2005 that allows surrogacy only when at least one of the commissioning parents contributes an egg or sperm.The Pretoria High Court on Wednesday struck down the genetic-link requirement in surrogacy, declaring it unconstitutional.Judge Anneli Basson said the case raised "difficult legal and ethical questions. [The dispute] raises complex and emotional issues that have a fundamental effect on many individuals who struggle with the devastating effects of infertility."She said the genetic-link requirement violated human rights on a "very personal and intimate level. It effectively puts persons' personal lives and family building plans on hold. This situation begs immediate relief."The case was brought against Minister of Social Development Bathabile Dlamini, who opposed the application but failed to present evidence to the court in time.The Surrogacy Advisory Group, which assisted the woman in her court action, will ask the Constitutional Court to confirm the High Court order. The woman, whose identity is protected by court order, had a "permanent and irreversible" condition which prevented her from becoming pregnant. Since 2001 the 56-year-old has undergone 18 in vitro fertilisation procedures and has had two miscarriages. With little hope, she pursued the surrogacy option.She said she was "shocked, saddened and baffled" when she discovered that she could not use surrogacy to have a child.She claimed the requirement of a genetic link violated a number of her constitutional rights, including those related to equality and human dignity.Yesterday experts welcomed the judgment, saying it would lead to more people applying for surrogacy agreements.Pretoria attorney Adele van der Walt said she often dealt with similar matters and had foreign clients who faced this problem."This is opening up possibilities for people and creating opportunities for parents," Van der Walt said.Johannesburg attorney Megan Harrington-Johnson said the judgment could be good news for couples denied children because of the bureaucracy inseparable from adoption."If this is confirmed by the Constitutional Court, there will now be very many more applications for surrogacy agreements. This is because there is so much red tape involved in adopting a child and so infertile couples may elect to take this route instead."Surrogacy Advisory Group chief adviser Robynne Friedman said she sees three or four cases a month similar to that of the Cape Town woman and has had to turn infertile couples away."A woman who lost her husband wanted to have a sibling for her child but she was infertile. I have had gay couples who have abandoned the process. Surrogacy is a wonderful gift that a woman can give another couple that cannot carry a pregnancy."

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