AB & SURROGACY ADVISORY GROUP vs Minister of Social Development & Center for Child Law: Constitutional Court, 2016

Member State

The applicant requests the Constitutional Court to confirm the decision of the Pretoria High Court on this matter. At the level of the High Court, the applicant had challenged the constitutional validity of provisions of section 294 of the Child Act regarding the requirement for genetic links in surrogacy matters, which according to the applicants violates the right to equality, dignity, reproductive health care, autonomy and privacy. The applicants argued that, although it was accepted that most people preferred using their own gamete in order to establish genetic links with a child, it is not fair to establish such as the rule, especially as some persons might be in circumstances that do not allow them to use their own gamete, and this legal provision therefore deprives them of the right to parentage, other than adoption. The High Court found section 294 of the Child Act to be inconsistent with the Constitution and invalid, and attributed costs to the respondents.  After examining the High Court’s judgment, the Constitutional Court disagreed with the former’s ruling on the constitutional validity of the contested legal provision, and upheld the respondents’ appeal.]