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[2022] ZAKZPHC 11
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Ex parte DW (11432/2021P) [2022] ZAKZPHC 11 (8 April 2022)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO: 11432/2021P
In
the ex parte application of:
DW
Applicant
ORDER
The
application is dismissed.
JUDGMENT
Delivered
on: 08 April 2022
Ploos
van Amstel J:
[1]
The applicant in this matter wants to have a child with the
assistance of a surrogate
mother, and seeks a declaratory order from
this court with regard to what is permissible in terms of s 294 of
the Children's Act
38 of 2005 (the Act) regarding
the
genetic origin of the child. He is a single man and is unable to
contribute his own gamete, as he is for all practical purposes
infertile. He seeks an order declaring that for purposes of his
intended surrogate motherhood agreement he 'can use sperm from
Donor
6293 of Fairfax Cryobank'. He seeks a further order declaring that
the first order will relate 'only to this one aspect of
the
applicant's intended surrogate motherhood agreement, namely
compliance with section 294 of the Children's Act...and that the
applicant shall further be required to bring an application to the.
court to confirm the intended surrogate motherhood agreement'.
[2]
Section 294 of the Act provides as follows:
'No
surrogate motherhood agreement is valid unless the conception of the
child contemplated in the agreement is to be effected by
the use of
the gametes of both commissioning parents or, if that is not possible
due to biological, medical or other valid reasons,
the gamete of at
least one of the commissioning parents or, where the commissioning
parent is a single person, the gamete of that
person,'
[3]
On the face of it the declaratory order sought by the applicant is
inconsistent
with the wording of s 294. He however contends that the
section, on a purposive interpretation, seeks to ensure that the
child
will in due course know its genetic origin. He accordingly
wants the court to declare that he is entitled to use sperm from a
donor
who lives in the United States of America and who has agreed to
his identity being disclosed to the child when it reaches 18 years
of
age. The applicant says this differs from the practice in South
Africa, where sperm banks only offer anonymous donors.
[4]
The
applicant relies on the decision of the Constitutional Court in AB
and another v Minister of Social Development,
[1]
where
a single woman had applied for section 294 to be declared
unconstitutional on various grounds, including that of irrationality.
The majority judgment held that the rational purpose of the section
was to create a bond between the child and the commissioning
parent
or parents, which is designed to protect the best interests of the
child to be born so that it has a genetic link with its
parent(s).
The court held that the section was not irrational, or
unconstitutional on any other basis.
[5]
The
applicant accepts that s 294 of the Act is not unconstitutional. He
contends, however, that the purpose of the section is served
if a
gamete is used from a donor who has consented to his identity being
revealed. He submitted that in those circumstances it
does not matter
that the child will not have a genetic link with the commissioning
parent, because the child's genetic origin can
be made known to it at
the appropriate time. The applicant accepts that such an
interpretation is contrary to the express wording
of the section, and
made it clear that he was not contending for a reading-in.
[2]
1 am
therefore concerned with the proper interpretation of the section as
it stands.
[6]
In Natal
Joint Municipal Pension Fund v Endumeni Municipality,
[3]
Wallis
JA said:
..
consideration must be given to the language used in the light of the
ordinary rules of grammar and syntax; the context in which
the
provision appears; the apparent purpose to which it is directed and
the material known to those responsible for its production.
Where
more than one meaning is possible each possibility must be weighed in
the light of all these factors.' (Footnote omitted.)
[7]
Section 294 deals with three different scenarios in the context of a
surrogate
motherhood agreement. The first is where the conception of
the child is to be effected by the use of the gametes of both
commissioning
parents; the second, where that is not possible due to
biological, medical or other valid reasons, the gamete of at least
one of
the commissioning parents; and the third, where the
commissioning parent is a single person, the gamete of that person.
[8]
The applicant contends that AB is authority for the proposition that
the purpose
of s 294 is to ensure that the child will be able to know
its genetic origin, and, therefore, it does not proscribe the use of
the gamete of a donor who has consented to his identity being
revealed to the child.
[9]
The first
difficulty with the submission is that it is based on a selective
reading of the majority judgment in AB. Nkabinde J said,
[4]
'the
conditions in s 294 are the means to establishing a genetic link
between the commissioning parents and the child to be born
as
contemplated in the surrogacy agreement'. She said establishing a
genetic link is a legitimate government purpose, and the 'substance
below the surface
[5]
is
the need for a genetic link between a child and at least one parent'.
Then followed the statement in the judgment that underlies
the
applicant's case, '[h]ence clarity regarding the origin of a child is
important to the self-identity and self-respect of the
child'. This
was said in the context of a consideration of the rationality of s
294, which requires a genetic link between the
child and at least one
of the commissioning parents.
[10]
AB is not authority for the proposition that the purpose of s 294 is
to ensure
clarity
regarding the origin of the child, and that the use of an identified
donor other than a commissioning parent is therefore
permissible in
the case of a single parent. If that were the case, what would the
position be of two commissioning parents who
are both unable to
contribute a gamete? The notion that they can then use the gametes of
two identified donors flies in the face
of the wording of the
section, which expressly refers to the 'gamete of at least one of the
commissioning parents'.
[11]
The
applicant, at my invitation, delivered comprehensive heads of
argument after the hearing. His submissions with regard to the
proper
interpretation of s 294 were eloquently formulated, but in most
instances relevant to a consideration of the rationality
of the
section, rather than establishing the meaning of its wording.
Examples are the submissions with regard to 'the legal preference
for
a parent-child genetic link'
[6]
and the 'socially dynamic, inclusive conception of the family'
[7]
espoused by the Constitution.
[12]
The applicant's difficulty with regard to the interpretation that he
contends for is twofold.
Firstly, the purpose of the section is not
what he contends it is, or at least not only what he contends it is.
Secondly, the section
does not have more than one possible meaning,
which have to be weighed as explained in Endumeni. The clear
meaning
to my mind is apparent from the wording of the section. In the
present context it is that no surrogate agreement is valid
unless the
conception of the child contemplated in the agreement is to be
effected, where the commissioning parent is a single
person, by the
gamete of that person. The wording is not capable of another possible
meaning.
[13]
There is one further submission that I must deal with regarding the
proper interpretation of
s 294. It was that the words 'the gamete of
that person', at the end of the section, can mean either the gamete
genetically derived
from the single commissioning parent, or a gamete
owned by, or in control of, the single commissioning parent. The
applicant used
the examples, in everyday language, of 'the car of
that driver' or 'the exam paper of that student'. There is nothing
that can
be said in favour of such an interpretation. It flies in the
face of the wording of the section, which requires the use of the
gametes of both commissioning parents, or, if that is not possible
due to biological, medical or other valid reasons, the gamete
of at
least one of them, or, where the commissioning parent is a single
person, the gamete of that person. It also flies in the
face of the
purpose of the section as explained by the Constitutional Court in
AB, as well as the purposive interpretation contended
for by the
applicant. The submission is without merit.
[14]
It follows that I do not agree with either of the interpretations
contended for by the applicant.
[15]
I should add that if I had concluded that the applicant's contentions
were correct I would nevertheless
have declined to make a declaratory
order. In AB the Minister of Social Development participated in the
proceedings and contended
successfully that the section was not
unconstitutional. A declaratory order by me regarding the proper
interpretation of the section
will not be binding on the Minister or
other interested parties in a subsequent application for the
confirmation of a surrogacy
motherhood agreement, because they are
not parties in the proceedings before me. They will be free to
contend that the declaratory
order was wrongly granted, and the judge
hearing that application may disagree with my interpretation of the
section. The position
is different from that, for example, in Lawson
& Kirk (Pty) Ltd v Phil Morkel Ltd,
[8]
where
both parties to the dispute participated in the
proceedings
for a declaratory order and were bound by the outcome. A declaratory
order in the form sought by the applicant in an
ex parte application
will be worth no more than legal advice.
[16]
The application for a declaratory order therefore cannot succeed. I
empathise
with the applicant's desire to have a child, and would have
helped him if I thought I could. Regrettably, I do not think I can.
[17]
The application is dismissed.
Ploos
van Amstel J
Appearances:
For
the Applicant:
D W in person.
Robynne Friedman
Attorneys
c/o ER Browne
Incorporated
Pietermaritzburg
Date
Judgment Reserved :
25 March 2022
Date
of Judgment
:
08 April 2022
[1]
AB and another v Minister of Social Development 2017 (3) SA 570
(CC).
[2]
Reading-in involves the addition to the section, by the court, of
words in order to reflect the clear intention of the legislature.
See Nedbank Ltd and others v National Credit Regulator and another
2011 (3) SA 581
(SCA) para 29; Durban City Council v Gray
1951 (3)
SA 568
(A) at 580B.
[3]
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4)
SA 593
(SCA) para 18. Also see Kubyana v Standard Bank of South
Africa Ltd
2014 (3) SA 56
(CC) para 18.
[4]
AB paras 293-295.
[5]
An expression used in Head of Department, Department of Education,
Free State Province v Welkom High School and others
2014 (2) SA 228
(CC) para 130, in the context of cases involving children.
[6]
In the context of the rationality of s 294, as explained in the
majority judgment in AB (supra).
[7]
A submission in the applicant's heads of argument. Du Toit and
another v Minister of Welfare and Population Development and others
(Lesbian and Gay Equality Project as amicus curiae)
[2002] ZACC 20
;
2003 (2) SA 198
(CC) concerned the constitutionality of sections in the Child Care
Act 74 of 1983 and the
Guardianship
Act 192 of 1993 regarding the adoption and guardianship of children
by two members of a same-sex life partnership
jointly; Minister of
Home Affairs and another v Fourie and others; Lesbian and Gay
Equality Project and others v Minister of
Home Affairs and others
[2005] ZACC 19
;
2006 (3) BCLR 355
(CC) concerned the constitutionality of the common
law definition of 'marriage'
[8]
Lawson & Kirk (Pty) Ltd v Phil Morkel Ltd
1953 (3) SA 324
(A).