Genetic-link requirement in surrogacy declared unconstitutional

This month, the Pretoria High Court struck down the genetic-link requirement in surrogacy, declaring it unconstitutional.

Under the Children’s Act of 2005, surrogacy is only allowed when at least one of the commissioning parents contributes an egg or sperm. If there was no genetic link, there could be no surrogacy agreement. This was unlike in vitro fertilisation (IVF), where no genetic link is required.

The Court found that the genetic-link requirement in surrogacy infringed the Constitutional rights to dignity and equality. Judge Anneli Basson emphasized that “a family cannot be defined with reference to the question whether a genetic link between the parent and the child exists. Our society does not regard a family consisting of an adopted child as less valuable or less equal than a family where children are the natural or genetically linked children of the parents. A family can therefore not be defined by genetic lineage.”

As orders of constitutional invalidity must be confirmed by the apex Court on these matters, the Surrogacy Advisory Group are to approach the Constitutional Court to confirm the High Court order.