Let’s compare Amy’s case with the School of Law’s building. If there were a law that banned people from using the ramp instead of the stairs, would this discriminate against disabled people? Yes. One cannot defend such a law by arguing that it is not the law that discriminates, but disabled people’s disability that is to blame. There is a ramp people with wheelchairs can use to access the building. Similarly, surrogacy and donor eggs and sperm would have given Amy “ramp access” to the joy of having children. Demanding she use her eggs, which she cannot, is the same as demanding people in wheelchairs use their legs to climb stairs.
That a Constitutional Court majority sided against Amy was a sad day for human rights and a sad day for our country. The judges’ argument that the law does not discriminate against infertile people was clearly wrong. The court had the opportunity to help people who are often marginalised and ostracised, and who suffer deeply because of their disability. But instead of doing their constitutional duty and standing up against discrimination, they told Amy she was to blame. This a disgrace.
This happened in 2015. Seven years later, the law is again being challenged in court. It will be heard in the Mpumalanga High Court, then come before the Constitutional Court. Will the apex court redeem itself and rectify its previous egregious mistake?
The constitution envisions SA as a society with compassion for all its members. We could not claim to be compassionate if we banned people in wheelchairs from using the ramp at the School of Law. By the same token, how can we claim to have compassion if we tell people who suffer from infertility that they must blame themselves when we know medical technology offers solutions such as donor eggs and surrogacy? How can we claim to have compassion if we allow the law to ban people such as Amy from realising their desire to build a family?
I call on the justices of the Constitutional Court to right this wrong.
• Donrich Thaldar is a professor of law at the University of KwaZulu-Natal