AB and Another v Minister of Social Development As Amicus Curiae: Centre for Child Law (40658/13) [2015] ZAGPPHC 580; [2015] 4 All SA 24 (GP); 2015 (10) BCLR 1228 (GP); 2016 (2) SA 27 (GP) (12 August 2015)

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[2015] ZAGPPHC 580
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AB and Another v Minister of Social Development As Amicus Curiae: Centre for Child Law (40658/13) [2015] ZAGPPHC 580; [2015] 4 All SA 24 (GP); 2015 (10) BCLR 1228 (GP); 2016 (2) SA 27 (GP) (12 August 2015)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 40658/13
DATE:
12 AUGUST 2015
AB
......................................................................................................................................
First
Applicant
SURROGACY
ADVISORY
GROUP
.........................................................................
Second
Applicant
And
MINISTER
OF SOCIAL
DEVELOPMENT
.......................................................................
Respondent
As
AMICUS CURIAE:
CENTRE
FOR CHILD LAW
JUDGMENT
AC
BASSON, J
Surrogacy
[1]
“
Surrogacy”
is regulated by chapter 19 of the Children’s Act
[1]
(“the
Act”). Although “surrogacy” is not defined by the
Act, the Act does contain the following definition
of a “surrogate
motherhood agreement”:
“’
Surrogate
motherhood agreement'
means an
agreement between a surrogate mother and a commissioning parent in
which it is agreed that the surrogate mother will be
artificially
fertilised for the purpose of bearing a child for the commissioning
parent and in which the surrogate mother undertakes
to hand over such
a child to the commissioning parent upon its birth, or within a
reasonable time thereafter, with the intention
that the child
concerned becomes the legitimate child of the commissioning parent;”
[2]
The
principle purpose of the surrogate motherhood agreement is that the
surrogate mother will carry a child (pregnancy) for the
commission
parents. Once the child is born, the child becomes - from the moment
of the birth and for all purposes - the child of
the commission
parent or parents.
[2]
A
surrogacy motherhood agreement will only be valid if a Court has
confirmed the agreement.
[3]
No
artificial fertilisation of the surrogate mother may take place
before the agreement has been confirmed by the Court and after
a
lapse of 18 months from the date of the confirmation of the agreement
by the Court.
[3]
An important
requirement that must be met before a Court may confirm a surrogate
motherhood agreement is contained in section 295(a)
of the Act. For
purposes of this judgment I will refer to this requirement as the
“threshold requirement”:
“
295.
Confirmation by court
—
A court
may not confirm a surrogate motherhood agreement unless—
(a)
the commissioning parent or parents are not able to give birth to a
child and that the condition is permanent and irreversible;”
[4]
In
essence it is therefore required – as a threshold requirement –
that surrogacy is available only to those parent(s)
who are unable to
procure implantation or carry a pregnancy to full term and in
circumstances where this  condition is permanent
and
irreversible. The threshold requirement is
not
the subject of constitutional challenge in these proceedings
[4]
.
Those individuals who fulfil the “threshold requirement”
and who intend to use surrogacy as a method to become parents
will be
referred to in this judgment as “the class”. (I will
revert to this concept herein below).
[5]
In
addition to the threshold requirement contained in section 295 of the
Act, a further requirement for a valid surrogacy agreement
is set out
in section 294 of the Act. I will refer to this requirement as the
so-called “
genetic
link requirement
.”
In the context of surrogacy, this requirement requires a
genetic
lineage
to
the child either from one or from both parents. Gametes
[5]
from
either both parents or one of the two parents or in the case of a
single parent from that parent, are therefore necessary in
terms of
section 295 of the Act to establish such a genetic lineage to the
child.
[6]
Compliance
with this genetic link requirement is therefore fundamental to the
validity of a surrogate motherhood agreement. Consequently,
where no
such genetic link exists, the surrogacy agreement will be invalid in
terms of the Act as it currently stands. If the commissioning

parents, or in the case of a single person, is therefore biologically
or medically unable to use their own gametes, the surrogate

motherhood agreement will be invalid and the commissioning parent(s)
are legally prohibited from using surrogacy as an alternative
of
becoming a parent(s). This section reads as follows:
“
294.
Genetic origin of child.
—
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.”
[6]
[7]
Commissioning parents or in the case of a
single parent may therefore not elect to use male
and
female
donor gametes
(referred to in this judgment as “
double-donors
”)
in the context of a surrogacy motherhood agreement.  However,
outside of the surrogacy context, parents (or a single
parent), have
the choice to either use their own gametes or to use (both) male
and
female donor gametes (double donor) in the context of
In
Vitro
Fertilisation (herein referred to
as “IVF”). In the IVF context therefore, the parents or
single parent have the right
to make use of double donor gametes for
any personal reason that they might consider convincing.
The
so called genetic link requirement can therefore be absent in the
context of IVF. The only factual difference therefore between

surrogacy and IVF is the fact that in the case of IVF a commissioning
parent carries and gives birth to the child whereas in the
case of
surrogacy it is the surrogate mother who carries and gives birth to
the child. In the case of IVF where the parent(s) decide
to use
double donors gametes, no genetic link will exists between the
parent(s) and the child. In the context of IVF such fertilisation
is
not prohibited. In the context of surrogacy the agreement will be
invalid.
Constitutional
challenge
[8]
The applicants in this matter are
challenging the constitutional validity of the provisions of section
294 of the Act on the grounds
that the genetic link requirement
violates the first applicant’s rights to equality, dignity,
reproductive health care, autonomy
and privacy. The applicants submit
that, although it is accepted that most people would prefer to use
their own gametes in order
to establish a genetic link with a child,
there is no justification for the limitation of these rights on this
basis and enforce
such a preference on everyone in the context of
surrogacy especially where such a limitation does not exists in the
context of
IVF. I will return to the submissions in this respect
hereinbelow.
[9]
In the factual matrix of this case the
requirement of the genetic link effectively makes it impossible for
the first applicant to
conclude a surrogate motherhood agreement and
consequently makes it impossible for her (except for adoption) to
become a parent.
Because of her specific medical condition, the first
applicant is not only biologically unable to give birth to a child -
which
condition is permanent and irreversible - she is also unable to
donate her own gametes (which is a requirement for surrogacy (the

genetic link requirement). Furthermore because she is not involved in
a sexual relationship with a person who is able to make such
a
contribution and therefore comply with the genetic link requirement,
she is also unable to donate the gametes from another parent.
The
only avenue open to the first applicant (bar adoption – which
will be indicated herein below is not a viable option)
to become a
parent is to resort to surrogacy using gametes from two donors
(double donor gametes). Surrogacy as an option to become
a parent is,
however, in the first applicant's case prohibited in terms of the Act
as a result of her inability to establish a
genetic link with a
child. This she says constitutes an infringement on her
constitutional rights.
[10]
Central
to the applicants’ case is the submission that members of the
sub-class
[7]
are entitled to the
same choice that those people who are using IVF outside of the
surrogacy context may have. It is further submitted
that the public
at large has an interest in a legislative regime that regulates
surrogate motherhood that is aligned with the values
of the
Constitution
[8]
and which is not
arbitrary, discriminatory and destructive of the human dignity of
especially members of the sub-class. The second
applicant therefore
brings this application on behalf of the class and the sub-class
pursuant to section 38(c) of the Constitution
and in the public
interest pursuant to section 38(d) of the Constitution.
[11]
The respondent submits that the requirement
that a genetic link exist between the commissioning parent and the
child is not unconstitutional
and should therefore not be declared
invalid. In the alternative, it is submitted that should this Court
strike down the impugned
provision, the invalidity should be
suspended in order to allow Parliament to rectify same.
The
Parties
[12]
Consequent
upon an anonymity order
[9]
the first applicant will not be identified in any way whatsoever in
the papers or in the judgment. The first applicant is therefore

merely identified as “AB”.
[13]
The
second applicant, the Surrogacy Advisory Group, was granted leave to
intervene and was joined as the second applicant on 8 November
2013.
Subsequent to the second applicant’s joinder to this case, the
second applicant is driving the case on behalf of both
the
applicants. The second applicant is a group of volunteers and
represents the interest of the class of people who cannot bring
a
child into the world themselves and who intend to use surrogate
motherhood to become parents. The second applicant assists in

matching individuals who desire to become parent(s) with a suitable
surrogate mother. The commissioning parents and the surrogate
mother
are also assisted during the process which includes medical
assessments and psychological assessments. The second applicant
also
assists the commissioning parent(s) to approach the Court to confirm
their surrogacy motherhood agreement. The deponent to
the founding
affidavit (on behalf of the second applicant) explains that since 1
July 2012 the second applicant had successfully
matched 55
prospective commissioning parents (27 couples and one single person)
with prospective surrogate mothers.
[10]
[14]
The respondent is the Minister of Social
Development. She is cited in her capacity as the Minister responsible
for the administration
of the Children’s Act.
[15]
The Centre for Child Law (“CLL”)
was on application admitted as
amicus
curiae
. The CLL was established in
terms of the Constitution of the University of Pretoria and is also a
registered law clinic with the
Law Society of the Northern Provinces.
The main objective of the CLL is to contribute within its means to
establish and promote
the best interest of children in South Africa
and more particularly to use the law as an instrument to advance such
interests.
Factual
matrix
[16]
The first applicant, who (as already
indicated) will remain anonymous, is an infertile mother who intends
to use a surrogate mother
to have a child. She explains in her
affidavit that as a result of the quality of her eggs and after two
in vitro
fertilisation (“IVF”) procedures using both her own eggs
and her husband’s sperm, she was unable to harvest her
eggs for
continued IVF purposes and was advised by her gynaecologist that
continued harvesting of her own eggs was not feasible.
After careful
selection from a local egg donor database, she started using
anonymous eggs for IVF.
[17]
After her relationship with her husband
ended in divorce she started, similar to the donor ova, carefully
selecting the sperm donor
from a local sperm donor database. The
first applicant in total underwent eighteen IVF cycles in an attempt
to achieve pregnancy.
Fourteen IVF cycles used
both
male and female
anonymous donor gametes
.
In other words, in the context of IVF the first applicant made use of
“double donors” in an attempt to become a parent.
[18]
As a result of the fact that none of the
IVF cycles resulted in a pregnancy, she was advised by her
gynaecologist that, in his expert
opinion, further IVF attempts would
have an incredibly small change of success and that she should rather
consider surrogacy as
a means to have a child.  I do not for
purposes of this judgment intend to refer in detail to the medical
opinion of the applicant’s
doctor. Suffice to point out that it
was not disputed by the respondent that the first applicant is
medically unable to carry a
pregnancy to term and that this condition
is permanent and irreversible. Also evident from her gynaecologist’s
affidavit
is that, in his expert opinion, the first applicant cannot
contribute her own gametes for conception nor is she medically able
to carry a child.
[19]
The first applicant thereafter investigated
the option of using surrogacy as a means of having a child. With the
assistance of an
organisation called
Baby2Mom
the first applicant was placed into contact with a potential
surrogate mother who agreed in principle to act as a surrogate mother

for the applicant.
[20]
The first applicant explains that she
received legal advice that, as far as the law on surrogacy currently
stands, a single person
who is infertile (in the sense that they
cannot contribute their own gametes for conception) is legally
forbidden to use surrogacy
as a means to become a parent.
[21]
The first applicant refers to the fact that
whereas the law allows for a person to use the gametes of two donors
(“double
donor gametes”) in the context of an IVF
procedure (where the parent to be (mother) carries her child to
birth), the law
forbids the same mother to be from using surrogacy as
a means to have a child using the same double donor gametes.
[22]
The first applicant explains in her
affidavit that she received the legal advice with a mixture of shock,
sadness and bafflement
especially since she has after all been using
double donor gametes (in other words, gametes both male and female)
for several years
in her attempts to achieve pregnancy herself
through IVF. This, she explains, simply does not make sense to her.
She further explains
that her only option now is to launch a
constitutional challenge to have the genetic link requirement removed
from the Act as she
is of the view that the current law is clearly
unfair and discriminatory.
Class
v subclass
[23]
In order to analyse the autonomy of
commissioning parent(s) in the context of surrogacy to make use of
“donor gametes”,
it is useful to draw the following
distinction between the different members of the "class"
that presupposes that they
are permanently and irreversibly unable to
give birth to a child themselves.
[24]
The “class” as a whole
comprises of parents who are reliant on a surrogate mother to carry
their prospective child on
their behalf. The class presupposes that
the parent is pregnancy infertile in the sense that such parent is
medically and biologically
unable to carry a child. The class further
comprises of a person or persons who are able to contribute their own
gametes towards
conception. Typically members of the class are
“
conception-infertile
”
parent(s) (within the context of section 295(a) of the Act) but
parent(s) who are still able to contribute at least one
gamete
towards conception. In the case of a single parent, that parent,
although conception-infertile, is able to contribute her
own gametes
towards conception. Because the commissioning parents or (single)
parent is able to contribute and in fact does contribute
his or her
own gametes towards conception, the genetic link requirement as set
out in section 294 is therefore complied with.
[26]
Within the context of members of “the class” there are
also individuals who, for whatever reason, may elect not
to use their
own gametes(although they are able to do so) and intend to use both
male and female donor gametes. Typically these
individuals may not
wish their prospective child to inherit a disease or disability of
which members of the class are likely genetic
carriers. These
individuals are likewise prohibited from using double donors since
they are unable to establish a genetic link
with the prospective
child.
[27]
Within this “class” a further class – referred to
herein as the “subclass” may be identified.
The members
of the “sub-class” are distinguished from the
aforementioned “class” by virtue of the fact
that they
are biologically
unable
to contribute their own gametes to conception or are not involved in
a sexual relationship with a person who is able to make such

contribution. Members of the sub-class are therefore unable to use
surrogacy as a method to become a parent because they are unable
to
establish a genetic link with the child that is carried by the
surrogate mother until birth. The first applicant in this matter

forms part of the “sub-class”.
[28]
Within the context of the members of the class, it is therefore
important to distinguish between two types of infertility:
The first
type of infertility is referred to “
pregnancy-infertility
”
which refers to the inability of a woman to procure implantation or
to carry a pregnancy to full term.
Pregnancy-infertility
constitutes the basis for qualifying for surrogacy in terms of the
Act. I have already pointed out that this requirement –
which
is the basis for qualifying for surrogacy - is not contentious in
this application. However, in the context of surrogacy,
the second
type of infertility namely “
conception-infertility
”
is contentious as it may constitute a
disqualifying
factor for pregnancy in that the inability to contribute one’s
own gametes (or to contribute the gametes of your partner)
towards
conception effectively
disqualifies
the commissioning parent or parents from concluding a valid surrogate
motherhood agreement.
[11]
“
Conception-infertility
”
in this context therefore means the biological inability of a person
(man or woman) to contribute to conception. Because
a parent is
prohibited from using double donors, surrogacy is prohibited. As a
result of the absence of a genetic link with the
prospective child,
the commissioning parent(s) are therefore prohibited from turning to
surrogacy as a means to become a parent.
[29]
As already pointed out, the first applicant in this matter is not
only
pregnancy-infertile
; she is also
conception-infertile
.
As a result the first applicant - whilst she qualifies on the basis
of being
pregnancy-infertile
- she is effectively disqualified
from using surrogacy because she is also
conception-infertile
and therefore unable to establish a genetic link with a prospective
child as is required by section 294 of the Act. Her desire
to use
surrogacy to have a baby therefore prompted her to bring this
constitutional challenge to strike down the genetic link requirement

as constituting an infringement on several of her human rights.
[30]
The first applicant further submits in her affidavit that it is her
desire to be granted the same choice that persons outside
the
surrogacy-context (in the IVF context) already have and to end the
exclusion of conception-infertile prospective commission
parents from
using surrogacy.
Divergent
views regarding surrogacy
[31]
Whilst the parties in this matter are
ad
idem
that surrogate motherhood fulfils
an important function as a viable avenue to parenthood, they however,
differ as to what is meant
by the concept of “
surrogacy
”
and it is this difference in opinion in respect of what this concept
means which lies at the heart of this dispute: The
applicants regard
the concept of “
surrogacy
”
to mean the provision of an opportunity to persons who cannot give
birth themselves to become parents
irrespective
of whether the child will be genetically related to the parents or
not. The respondent, on the other hand, regards the concept
of
“
surrogacy
”
to mean an opportunity to persons who cannot give birth themselves to
have a
genetically related
child. The respondent’s interpretation of the concept
“surrogacy” is therefore in line with the legislature’s

view of surrogacy as encapsulated in chapter 19 of the Act which
emphasises the requirement of a genetic lineage.
[32]
As will be pointed out herein below, the parties have divergent views
regarding the constitutionality of the challenged provision
that
requires such a genetic lineage: The applicants are of the view that
the genetic link requirement violates several constitutional
rights
of the class and the subclass. The respondent, on the other hand,
denies that the impugned provision infringes on any human
rights.
[12]
On a more elevated level, the applicants specifically take issue with
the special
value
that the legislature has assigned to genetic lineage and submitted
that the legal concept of a “family” cannot be assigned

special value to genetic lineage as families without a parent-child
genetic link are as valuable as families with such a genetic

lineage.
[13]
[33]
The dispute before the Court not only raises difficult legal and
ethical questions; it also raises complex emotional issues
that have
a fundamental effect on many of those individuals who struggle with
the devastating effects of infertility.
History
of surrogacy
[34]
It is not necessary for purposes of this judgment to give a detailed
exposition of the history preceding the enactment of Chapter
19 of
the Act. Suffice to note that the South African Law Commission
("SALC") investigated surrogate motherhood in the
South
African context. Representatives of various religious groups either
opposed surrogacy in any form whatsoever or proposed
that it be
restricted to the use of the commissioning parents’ gametes.
Representatives of the government of the time did
not however object
to a child being born to a couple where the gametes of neither
spouses were used.
[35]
The SALC issued a report in 1992 recommending that surrogate
motherhood agreements should be permissible “
only
if the gametes of at least one of the commission parents are used so
that the child is related to at least one of the commissioning

parents
”. The following appears
to be the rationale for this decision:
“
The
Commission remains convinced that in order to promote the bond
between the child and the commissioning parents it is desirable,
in
the best interest of such a child, that the gametes of at least one
of the commissioning parents should be used. This would
also restrict
undesirable practices such as shopping around with a view to creating
children with particular characteristics
.”
[36]
A parliamentary
ad hoc
Committee followed in 1994. Their deliberations culminated in a
further Report "The Ad Hoc Committee Report" in 1999.
One
of the far reaching additions to the SALC Report was the inclusion of
unmarried couples (irrespective of their sexual orientation)
and
single persons. In the case of a single person, it was recommended
that such parent must still contribute its own gametes:
“
Unmarried
persons who are involved in homosexual relationships should also
qualify as commission parents. A refusal to allow persons
involved in
such relationships to become commission parents should be based only
on established evidence that such persons are
less capable parents,
and that it will, therefore, not be in the best interest of the
child. It will not be possible to argue that
the sexual orientation
of a person should per se disqualify him or her from becoming a
parent. Disqualification may further be
seen as an impairment or
limitation of the rights of certain persons to make decisions
concerning reproduction and a violation
of their rights to dignity
and privacy
.”
[14]
[37]
The Ad Hoc Committee Report therefore recommended the retention of
the requirement that the gametes of at least one of
the commission
parents be used towards conception or in the case of a single person,
the gametes of that single parent. The rationale
for this
recommendation was as follows:
“
In
the instance where both the male and the female gametes used in the
creation of the embryo are donor gametes, it would result
in a
similar situation to adoption, as the child or children would not be
genetically linked to the commissioning parent or parents.
This would
obviate the need for surrogacy as the couple could adopt a child.
This type of surrogacy was not preferred by most commentators.
It was
felt that in both partial and full surrogacy it should be a
pre-condition that the child or children should always be genetically

linked to the commissioning parent or parents.”
[15]
[38]
Two observations can be made: Firstly, the inclusion of homosexual
parents and a single parent in the context of surrogacy
demonstrates
an acceptance that social practices and norms constantly change and
evolve and that the legislature must take cognisance
of these
changes.  Secondly, the SALC specifically recognised in the
context of homosexual relationships that individuals
have the right
to make certain decisions concerning reproduction and that a
limitation of this right constitutes a violation of
their rights to
dignity and privacy.
[39]
The genetic link requirement was subsequently enacted into law as
section 294 of the Act.
The
legislative intent of Chapter 19 of the Children’s Act
[40]
Before I turn to a comparative study of surrogacy, it is necessary to
briefly make a few remarks regarding the legislative
intent of
Chapter 19 of the Act.  In this regard the Court in
Ex
Parte MS and Others
,
[16]
held
that, should the  surrogacy agreement at issue in that case not
be confirmed it will be invalid and the consequence would
be that the
child, once born, would be the child of the surrogate mother and not
the commissioning parents. This Court held would
be contrary to the
broad objectives of the Children’s Act, and would impinge on
the rights of the commissioning parents,
the surrogate mother, and
the child:
“
[50]
.. The broad objective of the regulatory scheme established under ch
19 of the Act is to ensure sufficient protection for the
rights and
interests of all parties involved in surrogacy arrangements. . . .
[51]
… It [the consequences of not confirming the surrogacy
agreement] would impinge also on their [the commissioning parents’]

right to make reproductive choices, as the commissioning parents’
only recourse would be to seek to adopt the child born
to the
surrogate mother. This is precisely the problem that the Act sought
to overcome in making it possible for commissioning
parents under
surrogacy agreements to acquire parental rights without the necessity
of following an adoption process.”
[17]
[41]
The Court in
Ex Parte MS
therefore confirmed that the
overriding legislative purpose of Chapter 19 of the Children’s
Act is to regulate surrogacy
(in contrast with leaving it unregulated
or outlawing it) and to ensure the sufficient protection of the
rights and interests of
all parties involved in surrogacy
arrangements, which is to make it possible for commissioning parents
under surrogacy agreements
to acquire parental rights without the
necessity of following an adoption process.
[42]
The inclusion of the generic link requirement as a distinct
requirement included in the Act must be seen against the overriding

legislative purpose of the Act which is to make it possible for
commissioning parents to become parents and acquire parental rights

without having to go through an adoption process. If this is then
accepted to be the overriding legislative purpose, the question

arises whether the generic link requirement infringes upon an
individual’s right to become a parent in circumstances where
a
prospective parent(s) is unable to contribute gametes towards
conception and therefore unable to establish the legislative
requirement
of a  genetic link.
The
constitutional concept of the family
[43]
I have already referred to the fact that the applicants and the
respondent have different views regarding what should be understood

to define a family.  It is in my view therefore necessary to
make a few remarks in this regard: The question that pertinently

arises is whether genetic lineage (which constitutes a critical
component currently in terms of the Act) should be relevant in

defining the concept of a family.  The applicants contend that
no special value can be allocated to genetic lineage in the
legal
concept of the family.
[44]
The Constitutional Court has on occasion been willing to question the
traditional view of what constitutes a family in the
context of two
lesbian parents. In
J
v DG, Department of Home Affairs and Others,
[18]
a
woman gave birth to twin babies as a result of artificial
insemination with an anonymous donor sperm. She and her lesbian
partner
wished to be recognised as the legal parents of the twins on
the twins’ birth certificates. However, based on the relevant

legislation at the time, the Department of Home Affairs refused,
stating that “the two ladies cannot be regarded as father
and
mother or parent of the children since there is no legal marriage and
none of them can claim fatherhood of them”.
[19]
With
reference to the impugned provision, the Court
held
that:
[20]
“
[23]…
Plainly the Legislature sought thereby to deal with advances in
fertility and reproductive technology but it seems
to have confined
itself to the traditional view of the family.
”
[45]
In
Satchwell
v President of the Republic of South Africa and Another
[21]
the
Constitutional Court likewise questioned the traditional view of a
family and held as follows:
“
Family
means different things to different people, and the failure to adopt
the traditional form of marriage may stem from a multiplicity
of
reasons – all of them equally valid and all of them equally
worthy of concern, respect, consideration, and protection
under law.”
[46]
It is thus argued on behalf of the applicants that the genetic link
requirement allocates special value to genetic lineage
in the context
of establishing a family through surrogacy. This, so it was
submitted, should be found to be in conflict with the
legal concept
of the family in our constitutional dispensation. As was pointed out
by the Constitutional Court in
Satchwell
- although family can mean “
different
things to different people
”- all
of them are equally valid. I am in agreement with the sentiments
expressed by the Constitutional Court: A family cannot
be defined
with reference to the question whether a genetic link between the
parent and the child exists. More importantly, our
society does not
regard a family consisting of an adopted child or adopted children 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. The legislature should
therefore, in my view, take due cognisance of the advances made in
fertility and reproductive technology
and with that comes the
obligation to redefine the traditional view of the family.
Comparative
study on surrogacy
[47]
The Court was referred to extensive literature regarding the
statutory or regulatory framework in numerous foreign legal
dispensations.
I will refer only briefly to the legal position in
some of the countries referred to. The
amicus
curiae
(the Centre
for
Child Law) also filed extensive submissions in respect of the
comparative position on surrogacy. Before turning to a brief
reference to some of the jurisdictions, it appears from the
survey
that: (i) Surrogacy motherhood agreements are widely accepted in many
countries. (ii) All countries (including South Africa)
appear to
strictly regulate surrogacy in some form or another. On this point I
must make it clear that this Court does not, nor
did any of the
parties, take issue with the fact that surrogacy motherhood
agreements are (and in fact should be) tightly regulated
by the
legislature. Sound reasons for doing so exist and I will refer to
some of these considerations herein below. What is at
issue in this
matter is therefore not the principle that surrogate motherhood
agreements should be strictly regulated, what is
at issue in the
application is the contention that the genetic link requirement
contained in section 294 of the Act infringes upon
several human
rights of certain commissioning parents. (iii) The survey further
shows that there are a number of countries that
likewise require a
genetic link between the commissioning parents and the child and that
there are countries where this genetic
link is not required.  It
does however, appear from the literature that there are examples of
more recent legislative trends
to move away from the genetic link
requirement.
[48]
The respondent relied on the regulatory framework in England in
support of its argument that section 295 should be retained.

The Surrogate Arrangement Act
[22]
read
with the Human Fertilisation and Embryology Act
[23]
regulate
surrogacy in the United Kingdom and require a genetic link between
the commissioning parents and the child. The respondent
referred to
Carnelly
and Soni – Ex-Parte WH
[24]
where
the following explanation for the genetic link requirement is
proffered:
“
The
aim of the legislation and regulation is to make it possible for
commissioning couple to have a child genetically linked to
either or
both of them. Such surrogacy arrangements are legalised as a last
option for infertile couples or same sex persons to
conceive a child
genetically linked to either of them (Herring family Law (2004) 344).
If there is no genetic connection, there
is no need for surrogacy as
adoption could be viable alternative. It has been argued that
commercial surrogacy arrangements should
be avoided for ethical
reasons as it “commodities” children and treats them as
possessions that can be bought and sold
(Herring 343). Moreover,
commercialisation could lead to poorer women being exploited and
forced into surrogacy arrangements for
monetary purposes (Herring
343) whatever the rationale, in the principles have been firmly
established in the legislation of both
jurisdictions.”
[49]
In respect of the genetic link requirement the aforementioned
position is the same as in South Africa. There are, however,

fundamental differences between the position in South Africa and the
United Kingdom. In the United Kingdom surrogacy is restricted
to
couples therefore excluding single persons from using surrogacy.
[25]
In
contrast single persons in South Africa are allowed to make use of
surrogates.  Accordingly, the United Kingdom’s
legal
position on surrogacy is antithetical to our South African
constitutional values therefore rendering the comparative value
of
United Kingdom surrogacy law limited. Also, South Africa is a
constitutional democracy. The United Kingdom, on the other hand,
is
not a constitutional democracy.
[50]
The legal position in Australia is regulated on state level. Two of
Australia’s states requires a parent-child link whereas
five of
Australia’s states do not require a parent-link requirement in
any form.
[26]
[51]
Dutch legislation requires a parent–child genetic link for
surrogacy. Surrogacy is, however, limited to heterosexual

couples.
[27]
The
fact that the Netherlands effectively limits access to surrogacy to
heterosexual couples the Dutch position is misaligned with
the South
Africa’s human rights dispensation and therefore of limited
comparative value.
[28]
Since
2002 (in respect of donations made after 1 June 2004) the donation of
gametes is no longer anonymous.  When the child
reaches the age
of 16 a child conceived through medically assisted reproduction with
a sperm donor, has the possibility of obtaining
the identity of the
third-party donor, with the consent of the latter.
[29]
[52]
The
amicus curiae
also referred the Court to the position in Greece where it is not
required that there be a parent–child genetic link for

surrogacy. Brunet
et al
comments as follows:
“
The
state sought to empower the respect for the individual’s desire
to achieve self-fulfilment through  parenthood,
even
in  its  modern  form  of  “social
parenting”,  where  the
parent-child
relationship is based on emotions of love instead of biological ties,
and embraced a regulatory approach to the issues
of the assisted
reproduction. The law recognizes  the  case  of
full  “social  parenthood”,
where
the  child  has  no  genetic relationship with
his/her parents, and where the family relationships
are based merely
on intent.”
[30]
[53]
In respect of the position in the United States of America the Court
was referred to the fact that the position regarding the
genetic link
requirement seems to be diverse:
[31]
Several
states have enacted legislation that deals with surrogacy without
including a parent–child genetic link requirement
such as
inter
alia
,
Alabama, Louisiana, and Texas. In California, for example, no
explicit legislation exists that deals explicitly with surrogacy
or
with the genetic link requirement, yet the California Court of Appeal
held that the commissioning parents are the legal parents
of the
child even though neither of the commissioning parents had any
genetic link with the child.
[32]
Lastly,
the National Conference of Commissioners on Uniform State Laws in the
USA has enacted a Uniform Parentage Act as a model
law for the fifty
states and Washington DC. It is noteworthy to point out that while a
previous version of the Uniform Parentage
Act included an equivalent
of the genetic link requirement, such requirement was specifically
deleted from the current version.
[33]
[54]
The position in Canada is regulated by the Assisted Human
Reproduction Act of 2004. Legislation allows for altruistic surrogacy

and does not contain any provision that is similar to the genetic
link requirement. Commissioning parents in Canada are therefore
free
to use male and female donor ("double-donor gametes").
[55]
In Tasmania the Tasmania's Surrogacy Act of 2012 explicitly states
that a parent-child genetic link is legally irrelevant.
[56]
I will now turn to a brief discussion of surrogacy in terms of our
Constitutional framework.
Constitutional
framework
[57]
Section 1(c) of the Constitution of the Republic of South Africa
[34]
reads
as follows:
"The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
…
(c)
Supremacy of the constitution and the rule of law."
[58]
The interpretation clause of the Bill of Rights provides that the
Court
must
promote the values that underlie an open and democratic society. See
in this regard
Investigating
Directorate Serious Economic Offence and Others v Hyundai Motor
Distribution (Pty) Ltd and Others: In Re Hyundai Motor
Distributors
(Pty) Ltd and others v Smit NO and others
[35]
where
the Constitutional Court confirmed that judicial officers should read
legislation as far as possible in ways which give effect
to its
fundamental values.
“
[21]
Section 39(2) of the Constitution provides a guide to statutory
interpretation under this constitutional order. It states:
'When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.’
This
means that all statutes must be interpreted through the prism of the
Bill of Rights. All law-making authority must be exercised
in
accordance with the Constitution. The Constitution is located in a
history which involves a transition from a society based
on division,
injustice and exclusion from the democratic process to one which
respects the dignity of all citizens, and includes
all in the process
of governance. As such, the process of interpreting the Constitution
must recognise the context in which we
find ourselves and the
Constitution's goal of a society based on democratic values, social
justice and fundamental human rights.
This spirit of transition and
transformation characterises the constitutional enterprise as a
whole.
[22]
The purport and objects of the Constitution find expression in s 1,
which lays out the fundamental values which the Constitution
is
designed to achieve. The Constitution requires that judicial officers
read legislation, where possible, in ways which give effect
to its
fundamental values. Consistently with this, when the
constitutionality of legislation is in issue, they are under a duty

to examine the objects and purport of an Act and to read the
provisions of the legislation so far as is possible, in conformity

with the Constitution.”
[59]
The Court in
Zondi
v MEC for Traditional and Local Government Affairs and Others
[36]
however,
cautioned a Court considering a constitutional challenge to a
statutory provision not only to keep in mind the purpose
and effect
of a statute but also to keep in mind the principle of a separation
of powers.
[60]
The Rule of Law requires that legislation must have a rational nexus
with a legitimate governmental purpose:
New
National Party v Government of the Republic of South Africa and
Others:
[37]
“
[19]
… The first of the constitutional constraints placed upon
Parliament is that there must be a rational relationship between
the
scheme which it adopts and the achievement of a legitimate
governmental purpose. Parliament cannot act capriciously or
arbitrarily.
The absence of such a rational connection will result in
the measure being unconstitutional.”
[61]
Against this background it falls to be considered whether the genetic
link requirement for the validity of a surrogacy motherhood
agreement
has a rational connection between the scheme it adopts and the
achievement of a legitimate governmental purpose. In the
absence of
such a rational connection, the challenged provision should be
declared unconstitutional.
[62]
The respondent has identified nine purported purposes of the genetic
link requirement in support of its view that there if
a rational
nexus between the purpose and the genetic link requirement. They are
the following:
(i)
The best interests of the child;
(ii)
Prevention of the commodification and trafficking of children;
(iii) Promotion of
the child’s rights to know its genetic origin and to
information about the processes involved in his or
her conception;
(iv)
Prevention of the creation of designer children and of shopping
around for gametes with the intention of creating children
with
particular characteristics;
(v)
Prevention of commercial surrogacy;
(vi)
Prevention of the potential exploitation of surrogate mothers;
(vii)
Prevention of circumvention of adoption law;
(viii)
Promotion of adoption; and
(ix)
Prevention of a negative impact on the adoption process.
[63]
It is trite that the respondent has the burden of justifying the
infringement of the various constitutional rights by the imposition

of the genetic link requirement. See in this regard:
Moise
v Greater Germiston Transitional Local Council
:
[38]
“
[19]
… . If the government wishes to defend the particular
enactment, it then has the opportunity - indeed an obligation
- to do
so. The obligation includes not only the submission of legal argument
but the placing before Court of the requisite factual
material and
policy considerations. Therefore, although the burden of
justification under s 36 is no ordinary onus, failure by
government
to submit such data and argument may in appropriate cases tip the
scales against it and result in the invalidation of
the challenged
enactment. Indeed, this is such a case.”
[64]
It is the case for the applicants that there is no rational nexus
between the   purpose of the legislation which is to
provide for
a legislative framework within which individuals are able to become
parents in circumstances where they would otherwise
not have been
able to become parents and the genetic link requirement. The Act
further regulates surrogacy precisely to allow commissioning
parents
to acquire parental rights without the necessity to follow an
adoption process.
[39]
Autonomy
[65]
Having regard to the fundamental values underlying our democratic
society, it was submitted on behalf the applicant that an
underlying
constitutional value that is of particular relevance to the present
case is
autonomy
.
Before I turn to the content of this value, it needs to be pointed
out that autonomy is recognised as a underlying constitutional
value
in our law. Autonomy as a constitutional
value
(albeit
in this case in the context of the law of contract) was recognised in
the following terms by Ngcobo J
in
Barkhuizen
v Napier
:
[40]
“
[57]
The first question involves the weighing-up of two considerations. On
the one hand public policy, as informed by the Constitution,
requires
in general that parties should comply with contractual obligations
that have been freely and voluntarily undertaken. This
consideration
is expressed in the maxim pacta sunt servanda, which, as the Supreme
Court of Appeal has repeatedly noted,
gives
effect to the central constitutional values of freedom and dignity.
Self-autonomy, or the ability to regulate one's own affairs,
even to
one's own detriment, is the very essence of freedom and a vital part
of dignity. The extent to which the contract was freely
and
voluntarily concluded is clearly a vital factor as it will determine
the weight that should be afforded to the values of freedom
and
dignity. The other consideration is that all persons have a right to
seek judicial redress. These considerations express the

constitutional values that must now inform all laws, including the
common-law principles of contract.”
O’Regan
J in
NM
v Smith
[41]
offered
the following in respect of the subject of autonomy:
“
[145]
… Recognising the role of freedom of expression in asserting
the moral autonomy of individuals demonstrates the close
links
between freedom of expression and other constitutional rights such as
human dignity, privacy and freedom. Underlying all
these
constitutional rights is the constitutional celebration of the
possibility of morally autonomous human beings independently
able to
form opinions and act on them. As Scanlon described in his seminal
essay on freedom of expression, an autonomous person:
‘
.
. . cannot accept without independent consideration the judgment of
others as to what he should believe or what he should do.
He may rely
on the judgment of others, but when he does so he must be prepared to
advance independent reasons for thinking their
judgment likely to be
correct, and to weigh the essential value of their opinion against
contrary evidence.’”
[66]
In light of the quoted decisions herein above it appears firstly that
autonomy is an underlying value of the Constitution;
and secondly,
what is meant by the value is the ability to independently form
opinions and act on them.
[67]
The respondent does not dispute that autonomy is a constitutional
value that underlies an open and democratic society based
on human
dignity, equality and freedom. The respondent, however, disputes the
attempts by the second applicant to elevate a value
to a
right:
See
also
State
v Jordan and others (Sex worker Education and Advocacy Task Group and
others as Amicus Curiae)
:
[42]
“
[52]
There was considerable overlap in the challenges. Thus, counsel for
the appellants argued that the structure of the Constitution
makes it
necessary to cluster the rights to dignity, privacy, and freedom of
the person under the global concept of autonomy. In
the first place,
he argued, it is a matter of extreme significance for all persons to
be able to determine how to live their lives.
It is the experience of
autonomy that matters, the right to make decisions rather than the
content of these decisions. Secondly,
the State should not be
empowered to make judgments concerning the good or bad life, provided
that the conduct in question does
not harm others. Such conduct might
be unworthy or risky, but if it is not harmful to others then the
State cannot interfere.
[53]
While we accept that there is manifest overlap between the rights to
dignity, freedom and privacy, and each reinforces the
other, we do
not believe that it is useful for the purposes of constitutional
analysis to posit an independent right to autonomy.
There can be no
doubt that the ambit of each of the protected rights is to be
determined in part by the underlying purport and
values of the Bill
of Rights as a whole and that the rights intersect and overlap one
another. It does not follow from this however
that it is appropriate
to base our constitutional analysis on a right not expressly included
within the Constitution.”
[68]
I do not read the applicants’ papers to suggest that the value
of autonomy should be elevated to a right under the Constitution.
I
read the submission to mean no more than that autonomy is a
constitutional value that should be considered in deciding the
question
before this Court.
[69]
I will now turn to a brief discussion of the reasons advanced by the
applicants as to why they are of the view that the genetic
link
requirement in the context of surrogacy are infringing upon members
of the class.
Right
to equality
[70]
Central to the applicants’ constitutional challenge is the
contention that the
genetic link
requirement causes a certain category of persons namely specifically
members of sub-class to be treated differently
and not to enjoy equal
protection and benefit of the law. To this end, it was submitted that
there is no rationality for such differentiation
and accordingly the
provisions of section 9(1) of the Constitution are violated.
[71] Section 9(1) of
the Constitution reads as follows:
“
Everyone
is equal before the law and has the right to equal protection and
benefit of the law.”
[72] I am in
agreement that the right to equality is undoubtedly of considerable
importance in deciding this matter. The right to
equality is
recognised as being “
deeply foundational
” to the
creation of our democracy and has been recognised
as
such in
S
v Makwanyane
and
Another:
[43]
See
also: Minister of Home Affairs and Another v Fourie and Another
.
[44]
[73]
It was submitted on behalf of the applicants that because the genetic
link requirement completely excludes the sub-class from
using
surrogacy as a means to become a parent(s) (conception-infertility),
the genetic link requirement effectively constitutes
discrimination
on the basis of infertility. “
Infertility
”
is, however, not listed as one of the grounds constituting
discrimination in section 9(3) of the Constitution. Although
it is
accepted that a mere “
differentiation
”
does not necessarily constitute an impermissible and unconstitutional
violation of equality, a differentiation may constitute

discrimination if it is based on a ground that is analogous to the
grounds listed in section 9(3) of the Constitution.
[45]
In
Harksen
v Lane
[46]
it
was held that discrimination will manifest, if the ground is “
based
on attributes or characteristics which have the potential to impair
the fundamental dignity of persons as human beings, or
to affect them
adversely in a comparably serious manner
.”
[47]
In
deciding the question whether a differentiation constitutes
discrimination, factors such as patterns of discrimination in
society;
the nature and purpose of the discriminatory law; and the
impact of the discrimination on fundamental dignity must be
considered.
[74]
I accept the view that infertility objectively has the potential to
impair human dignity. Ms Rodrigues states as follows in
her expert
opinion:
[48]
“
Infertility
is often a painful and complicated emotional experience for both
sexes and across cultures; it has a profoundly negative
effect on
some of the core elements of a person’s being, such as
self-worth, sense of identity and autonomy. While societal

marginalisation of infertile people in South Africa is a sad fact in
many cases, there are also positive signs of acceptance and
support.”
[75]
In addition she points out that that infertile people are often
subjected to marginalisation in our society:
[49]
“
Infertile
persons often feel socially isolated and marginalised, as they often
experience their family and friends as – although

well-intentioned – lacking in understanding of the full reality
and impact of infertility.
”
[76]
I am in agreement with the submission that the genetic link
requirement (in the context of surrogate-gestation) clearly
constitutes
discrimination if regard is had particularly to the
impact this requirement has on the sub-class. The genetic link
requirement
has the effect of completely excluding members of the
sub-class from accessing surrogate motherhood as a reproductive
avenue. Furthermore,
excluding members  of the sub-class from
accessing surrogate motherhood undoubtedly encroaches upon their
human dignity not
only in that it prohibits a member of the sub-class
from exercising his or her right to autonomy but also in light of the
fact
that the exclusion reinforces the profound negative
psychological effects that infertility often has on a person.
Excluding the
members from the subclass on the basis of the genetic
link requirements therefore constitutes in my view discrimination as
contemplated
by section 9 of the Constitution.
[77]
I should point out that although the respondent accepts that the
genetic link requirement causes differentiation, it submitted
that
the differentiation is rational. More in particular the respondent
emphasises the factual difference between “
self
-gestation
” and
“
surrogate-gestation
”.
Although it is accepted that
factually
such a differentiation exists, it is not accepted that this factual
differentiation justifies a legal differentiation. If regard
is had
to the IVF regime where parents are free to use double-donor gametes,
the proposition that the factual differentiation justifies
a legal
differentiation becomes difficult to accept.
[78]
See in this regard the "Regulations Relating to Artificial
Fertilisation of Persons" ("the Regulations").
The
Regulations form an integral part of the surrogacy regulatory scheme
and constitute an important source of the legal rights
in the context
of artificial fertilisation
:
[50]
“
1
In these Regulations any word or expression to which a meaning has
been assigned in the Act shall have such meaning and, unless
the
context otherwise indicates –
“
gamete
donor” means a living person from whose body a gamete or
gametes are removed or withdrawn, for the purpose of artificial

fertilisation;
“
recipient”
means a female person in whose reproductive organs a male gamete or
gametes are to be introduced by other than
natural means; or in whose
uterus/womb or fallopian tubes a zygote or embryo is to be placed for
the purpose of human reproduction;"
10(2)(a)
A competent person shall not effect in vitro fertilisation except for
[the purpose of] embryo transfer, to a specific recipient
and then
only by the union of gametes removed or withdrawn from the bodies of
–
(i)
such recipient and an individual male gamete donor; or
(ii)
an
individual male and an individual female gamete donor;
[51]
11A
competent person intending to effect the artificial fertilisation or
embryo transfer to a recipient shall, before effecting
the artificial
fertilisation or embryo transfer –
(a)
ensure that if a recipient file has not previously been opened in
respect of that recipient, open such a recipient file, to
which a
unique identification number shall be allocated in respect of the
recipient;
(b)
…
(c)
ensure that –
(i)
…
(ii)
the recipient's particulars and wishes referred to in regulation
13(1)(a)(i) to (iii) are conformed with;
14(1)
A competent person who effects the artificial fertilisation of or
embryo transfer to a recipient shall immediately record
or file the
following particulars and documents in a recipient file referred to
in regulation 11(a):
(a)
the recipient’s –
(i)
full name, surname, date of birth and identity number;
(ii)
family history, especially with regard to possible carrier status
for genetic and or mental disorders;
(iii)
wishes
in respect of the population group of which the gamete donor, whose
gametes are to be used for the artificial fertilisation,
should be a
member and the religion, which the gamete donor should profess, as
well as any other wish of the recipient concerning
the gamete
donor;”
[52]
[79]
If the Regulations are perused it is clear that in the context of IVF
a recipient who decides to use donor gametes  is
entitled to
state her wishes in respect of the gamete donor. In fact, if the
Regulations are carefully analysed it appears firstly
that the
recipient specifically has the right (but not limited) to choose
gametes from a person who is from a particular population
group or
from a particular religion. Furthermore the Regulations specifically
allow the recipient to use gametes from
both
an individual male
and
an individual female donor. It therefore appears that, at least as
far as
in vitro
fertilisation is concerned, the recipient has the right to use and
select
both
male and female donor gametes purely based on personal choice. This
stands in stark contrast with the genetic link requirement
in terms
of which members of the class to which the first applicant belong may
not choose to use and select both male and female
donor gametes
purely based on personal choice.
[80]
I have already referred to the fact that the respondent draws a
difference between self-gestation (in the context of IVF) and

surrogate-gestation to justify the genetic link requirement. I have
already referred to the fact that in the context of the Regulations

it is the recipient herself who takes the decision to receive a
gamete(s) into her reproductive organ.
[53]
In
the context of surrogacy it is a third party namely a surrogate
mother who (in consequence of a surrogate motherhood agreement)

consents to receive both male and female gametes. This she can only
do consequent upon an agreement that has been confirmed by
the court
in terms of section 296 of the Children’s Act which sets as a
requirement that a genetic link to the commissioning
parent(s)
exists.
[81]
On the basis of this distinction it was submitted on behalf of the
respondent that the procedures are different and therefore
not
comparable. If was further submitted that in the event of double
donor gametes the "
surrogate mother
merely provides her womb for hire
“and
that
to allow the commissioning of a child
with no genetic link to the commissioning parent is tantamount to the
creation of a new form
of adoption.  In other words, a child
would be created for “adoption” by the commissioning
parent. Lastly it was
submitted that such a process will circumvent
the existing laws of adoption.
[82]
I have several difficulties with this submission: Firstly, the
submission that the “womb is for hire” is fundamentally

wrong. Section 295(c)(iv) of the Act specifically outlaws using
surrogacy as a source of income. The mere fact that double donors
are
used does not alter this principle. Secondly, the fact that the two
procedures are fundamentally different is factually correct
but does
not, in my view, offer a justification for the fact that in law a
differentiation is drawn between IVF procedures and
surrogacy
especially in light of the fact that both procedures have at its
primary aim allowing infertile people to become parents.
Thirdly, the
submission that surrogacy (double donor) will circumvent the existing
laws for adoption is groundless. This submission
is particularly
without merit in light of the fact that it was, conceded by the
respondent during argument, that adoption is not
a viable option. I
am particularly not in agreement with the submission that to allow
the commissioning of a child with no genetic
link to the
commissioning parent is tantamount to the creation of a new form of
adoption. This argument has no merit at all:
Firstly, the Act
provides for the consequences of a surrogacy agreement on the status
of the child. Once the child is born he/she
becomes the lawful child
of the commissioning parent(s). The child is therefore not adopted.
Whether one donor gamete or
two donor gametes are used will in my
view make no difference to the consequence of such an agreement.
Furthermore, this argument
completely loses sight of the complex
procedures that accompanies adoption in general which renders the
process often inaccessible
to prospective parents.
[83]
More fundamental is the submission on behalf of the respondent that
the constitutional rights of a child guaranteed in section
28(2) will
be compromised if the genetic link requirement is removed in that:
Firstly, the information relating to the child’s
genetic
origins and conception are withheld. (ii) Secondly, the child’s
right to dignity are compromised in that the child
is the subject of
a contractual transaction which is created for the specific
requirement of the commissioning parent and which
can be bought and
sold to the highest bidder; and (iii) Thirdly, in that absence of a
genetic link, a child born with a disability
may become an abandoned
object as it is easy for the commissioning parent to walk away.
[84]
Again I have several difficulties with these submissions: Firstly,
there is no persuasive evidence before the Court that information

relating to the child's genetic origin is necessarily in the best
interest of the child. This proposition further begs the following

question: how is the child’s alleged interest in knowing its
genetic origin promoted by targeting only surrogacy commissioning

parents who elect to use double-donor gametes but not prospective
parents who use IVF and elect to use double-donor gamete? There
is in
my view simply no rationality in such a differentiation. Secondly,
the submission that the child is subject to a contractual
transaction
where double donors are used in surrogacy context is misplaced.
Surrogacy motherhood agreements are specifically recognised
in our
law and also in various other legal systems. The mere fact that
double donors (and not only a single donor) are used should
not in
law make a difference. Such contracts are and should be, carefully
scrutinized by the Courts before such a contract will
be valid. The
mere fact that double donor gametes are used will merely be a factor
that the Courts will take into account together
with all other
relevant factors. Thirdly, submitting that the child can be bought
and sold to the highest bidder is inappropriate
and devoid of any
substance. Lastly, it was submitted, relying on Professor Van
Bogaert’s opinion that it will not be in
the best interests of
the child to strike down the genetic link requirement. There is no
substance in this submission. In fact
I am of the view that this
constitutes an insult to all those families that do not have a
parent-child genetic link. Surely it
can never be argued in the
context of adoption that the absence of a parent-child genetic link
is not in the best interests of
the child.
[85]
The respondent relied on the opinion of Professor Van Bogaert
[54]
where
she says that – “
clarity
of origin is critical for a child as it is inexorably bound to
self-identity and self-respect
.”
While it is accepted by the applicants that clarity of origin may be
important to the self- identity and self-respect of
the child, this
argument ignores the fact that this argument is equally valid in
cases where the commission parent uses the gametes
of a donor or in
the case of IVF where the parent(s) often use the gametes of
two
donors. This opinion also ignores the fact that there are no
persuasive arguments before this Court to indicate that the child
who
does not know his genetic origin is necessarily negatively affected
thereby.  Furthermore, this argument completely loses
sight of
the fact that even in circumstances where a single gamete is used
towards conception - which is legal in terms of the
Act because a
genetic link will be established - the child will also not
necessarily know the identity of the donor. This factual
element does
not, therefore in my view, constitute a legitimate government purpose
as it fails, in my view, to justify such government
purpose.
[86]
I am particularly not persuaded that the respondent has placed any
persuasive and credible data before this Court to show that
the
presence or absence of a genetic link between a parent and child in
the context of surrogacy appears to have an adverse effect
on the
child's psychological well-being. In this regard the Court was
referred to the well-researched report presented by Professor

Golombok (who is an expert in the specialised field of psychology or
in psychology in general) that no such evidence exists.

Moreover, Professor Golombok's opinions are shared by the expert
opinion of Dr Vasanti Jadva a colleague of Prof Golombok at the

Centre for Family Research at Cambridge University who is also an
expert in the same specialised field as Professor Golombok.
[55]
Dr
Jadva states that the results of the empirical research conducted by
the Centre for Family Research at Cambridge University add
to the
"growing body of research that shows that biological relatedness
between parents and children – whether genetic
or gestational –
is not essential for positive child adjustment."
[56]
In
support of the statement, she presents peer-reviewed research results
of other researchers in this field who are not related
to Cambridge
University.
[57]
[87]
I am therefore not persuaded that there is a rational connection
between the differentiation in question and the legitimate

governmental purpose it is designed to achieve. The purpose of
regulating surrogacy into legislation was to allow commissioning

parents including a single parent to have a child.  This is also
the purpose of the legislation in the IVF context. Requiring
that a
genetic link should exist between the parent(s) and the child in the
context of surrogacy whereas such a requirement is
not set in the
context of IVF defeats the purpose and in the absence of a legitimate
governmental purpose should be struck down.
[58]
Human
Dignity
[88]
Section 10 of the Constitution provides as follows:
“
Everyone
has inherent dignity and the right to have the dignity respected and
protected.”
[89]
I am in agreement with this submission that given the fact that a
genetic link requirement infringes on autonomy - which is
a vital
part of human dignity - this requirement infringes on human
dignity.
[59]
I
have already pointed out that commissioning parent(s) who make the
decision to use donor gametes towards the conception of the

prospective child for whatever personal reasons, are exercising their
autonomy.
Reproductive
autonomy
[90]
The Court was also referred to section 12(2)(a) of the Constitution
which reads as follows:
“
12(2)
Everyone has the right to bodily and psychological integrity, which
includes the right
a.
to make decisions concerning reproduction;”
[91]
In light of the above it was submitted that the decision to use donor
gametes for the conception of one’s child-to-be
and acting on
such decision falls squarely within the ambit of this constitutional
right.
[92]
I am in agreement with this submission particularly if regard is had
to the fact that in the context of IVF gamete donor selection
has
already become accepted practice in our country. In fact, gamete
donor selection and in fact double donor selection is recognised
as a
legal right in the context of IVF. The fact that IVF and gamete
selection are now regarded as an accepted practice available
to
parents who are unable to conceive children in the traditional way
(through sexual intercourse) has also invariably resulted
in
broadening the ambit of  the decisions that an individual may
make regarding his or her reproduction.
[93]
In light of the above I am of the view that the genetic requirement
in the context of surrogacy infringes on the constitutional
right to
make decisions concerning reproduction and consequently also
constitute a violation of the human dignity of members of
a class.
Privacy
[94]
In two Constitutional Court decisions,
Bernstein
v Bester NO and Others
,
[60]
and
NM
v Smith
,
the Constitutional Court acknowledged the right to privacy and the
fact that the right to privacy encompasses the right of a person
to
live his or her life as he or she pleases, and not to be interfered
with.
[61]
[95]
I am in agreement with the submission that the commissioning
parent(s) decision to use donor gametes for the conception of
their
prospective children and acting on such decision falls within the
realm of privacy and accordingly within the ambit of protection
of
the constitutional right to privacy. Commissioning parents (in the
surrogacy context) therefore have a constitutional right
not to be
interfered with in making decisions to use donor gametes for the
conception of their prospective children especially
in light of the
fact that parents already have such a right in the context of IVF.
Limiting the right to circumstances where a
single donor is used
constitutes, in my view a drastic interference by the State of the
right to privacy.
[96]
Accordingly, the genetic link requirement infringes on the
constitutional right to privacy.
Access
to healthcare
[97]
The applicant also submitted that the genetic link requirement
constitutes an infringement of the subclass’ right to
access to
health care. Section 27 of the Constitution reads as follows:
“
(1)
Everyone has the right to have access to –­
(1)
health care services, including reproductive health care;
…
(2)
The state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation
of
each of these rights.”
[98]
I do not intend analysing the content of this right in detail for
purposes of this judgment suffice to point out that surrogacy
is a
form of reproductive health care, as has been recognised by the
Ad
Hoc
Committee, albeit in the context of the financial cost of
surrogacy:
[62]
“
Furthermore,
the cost factor in South Africa regarding surrogacy should be seen in
the light of the Constitution, which provides
that everyone has a
right to have access to health care services, including reproductive
health care.”
[99]
The interest of persons who are members of the subclass to access
surrogacy is accordingly protected within the ambit of the

constitutional right to access to health care services.
Consequently, the right to access to health care services consequent

to the genetic link requirement excludes persons who are members of
the subclass from accessing surrogacy. Accordingly, the genetic
link
requirement infringes on the constitutional right to access to health
care services.
Remedy
[100]
I am in agreement with the submission that the only remedy that will
afford appropriate relief to the class (and per definition
the
sub-class) is the striking down of the genetic link requirement.  The
striking down of the genetic link requirement is
the only way in
which to ensure the consistency of Chapter 19 of the Act with the
Constitution and its underlying values. In this
way, members of the
class (persons who cannot themselves give birth to a child) would be
able to decide for themselves –
as autonomous moral agents –
whether to use their own gametes or donor gametes.
[101]
I am not persuaded that the remainder of Chapter 19 of the Act, with
its comprehensive and robust legal checks and protections
will be
adversely affected by the striking down of the genetic link
requirement. Accordingly, whether a member of the class decides
to
use their own gametes or donor gametes, the surrogacy agreement and
its legal consequences would be regulated in the same way
by Chapter
19 of the  Act.  Furthermore should a member of the class
decide to use donor gametes, the Regulations in
terms of the National
Health Act that already regulate gamete donor selection, already
provide for a legal framework within which
gamete donor selection
will take place.
[102]
The genetic link requirement violates persons’ human rights on
a very personal and intimate level. In the case of the
sub-class, it
completely prohibits them from accessing surrogacy. It effectively
puts persons’ personal lives and family-building
plans on hold.
This situation begs immediate relief.
[103]
Section 172 of the Constitution obliges (“must”) this
Court to declare that any law (or conduct) that is inconsistent
with
the Constitution is invalid. The Court “may” however also
make an order suspending the declaration of invalidity
for a period
on (
inter
alia)
the condition that a competent authority corrects the defect.
[63]
On behalf of the respondent it was submitted that that an immediate
striking-down of section would cause disorder or dislocation.
More in
particular, it was submitted that section 295 of the Act is not
severable from the remainder of the sections contained
in Chapter 19
of the Act and that an immediate striking down of the section would
be prejudicial to good governance. It was also
submitted that
declaring section 294 of the Act unconstitutional immediately would
create a vacuum during which there would be
no regulation of
surrogacy.  (See
S
v Jordaan.
[64]
)
[104]
I do not agree. I have carefully scrutinized section 294 in the
context of Chapter 19 of the Act. This section is entirely
severable:
the remainder of the provisions in Chapter 19 is not affected nor is
the overriding purpose of regulating surrogacy
agreements impinged
upon:  A surrogate motherhood agreement must be confirmed by a
Court. The fact that a double donor gametes
and not only one donor
gamete is to be used makes no difference. The checks and balances
provided by section 295 and conferred
upon a Court will remain
unaffected. I have already stated hereinabove that the important
supervisory role of the Courts in the
context of surrogacy was
acknowledged by all parties. It is also instructive to emphasise that
in terms of section 296 of the Act,
no artificial fertilisation of
the surrogate mother may take place before the surrogate motherhood
agreement is confirmed by the
Court. Apart from this section which
contains a crucial regulatory instruction in respect of surrogacy
motherhood agreements, I
am of the view that the remainder of the
sections contained in Chapter 19 will remain unaffected in the event
of the removal of
section 294 of the Act on the basis that it is
unconstitutional: The requirement that the agreement be in writing
(section 292
of the Act the consent of husband, partner of wife
(section 293 of the Act); the provisions regulating the artificial
fertilisation
of the surrogate mother (section 296 of the Act); the
effects if the surrogate motherhood agreement on the status of the
child
(section 297 of the Act); the termination of the surrogate
motherhood agreement (section 298 of the Act); the effect of the
termination
of surrogate motherhood agreement (section 299 of the
Act); the termination of pregnancy (section 300 of the Act); the
regulation
of payments in respect of surrogacy (section 301 of the
Act); the identity of the parties to court proceedings (section 302).
[105]
I am consequently in agreement with the submission on behalf of the
applicants that the genetic link requirement is entirely
severable
from the rest of Chapter 19. More importantly, as already pointed
out, I am of the view that the remainder of Chapter
19, with its
comprehensive legal checks and protections, would remain unaffected.
[106]
I am therefore of the view that this Court should declare section 294
of the Act to be inconsistent with the Constitution
and therefore
invalid to the extent of its inconsistency. More in particular, I am
of the view that there is no reason why the
declaration of invalidity
of the genetic link requirement should be suspended to provide the
legislature time to investigate the
matter and attempt to obtain
public opinion:  Section 294 is unconstitutional for the reasons
set out hereinabove and suspending
the invalidity declaration in
order to obtain public opinion is, in my view a futile exercise. In
this regard I am in full agreement
with what the Constitutional Court
held in
Van
der Merwe v RAF
[65]
namely that constitutional validity of a law stems from the
Constitution itself and that a law inconsistent with it is invalid:
“
[61]
This line of reasoning falters on two grounds. First, the
constitutional validity or otherwise of legislation does not derive

from the personal choice, preference, subjective consideration or
other conduct of the person affected by the law.
The
objective validity of a law stems from the Constitution itself, which
in s 2, proclaims that the Constitution is the supreme
law and that
law inconsistent with it is invalid.
[66]
Several other provisions of the Constitution buttress this
foundational injunction in a democratic constitutional State. A few

should suffice. Section 8(1) affirms that the Bill of Rights applies
to all law and binds all organs of State including the Judiciary.

Section 39(2) obliges courts to interpret legislation in a manner
that promotes the spirit, purport and objects of the Bill of
Rights.
And importantly, s 172(1) makes plain that, when deciding a
constitutional matter within its power, a court must declare
that any
law that is inconsistent with the Constitution is invalid to the
extent of its inconsistency. Thus the constitutional
obligation of a
competent court to test the objective consistency or otherwise of a
law against the Constitution does not depend
on and cannot be
frustrated by the conduct of litigants or holders of the rights in
issue. Consequently, the submission that a
waiver would, in the
context of this case, confer validity on a law that otherwise lacks a
legitimate purpose has no merit.”
Costs
[107]
The applicants strongly submitted that a special costs order namely
costs on an attorney clients scale is warranted in this
matter both
in respect of the main application and the interlocutory application.
[108]
In considering the issue of costs it is imperative to have regard to
the fact that this is a constitutional challenge against
the validity
of a provision of an Act. The party against whom this application is
brought is the State (more specifically the Minister
of Social
Development) who is the custodian of the Act.
[109]
The applicants submitted that they are entitled to a special costs
order. (I will for purposes of costs distinguish between
the costs
pertaining to the main application and costs pertaining to the
interlocutory applications). The applicants submitted
that, in
respect of the main application the respondent was at all times aware
of the urgency of the matter and was specifically
alerted to the fact
that the matter required the urgent attention of the respondent. Save
for the respondent’s Notice to
Defend, every single other
document were filed late. In stark contrast is the fact that the
applicants were not late in filing
their documents. It is common
cause that the respondent has filed its answering affidavit 5 months’
late. In argument, the
blame for the delays was placed on Professor
Van Bogaert. Apart from the fact that this was raised for the first
time from the
bar, there is nothing before this Court to substantiate
this allegation. Moreover, if regard is had to the correspondence
that
formed part of the record it is clear that the respondent was
urged by the applicant to file its answering affidavit. Finally on
1
November 2013, the respondent filed its answering affidavit. When the
answering affidavit was filed, it was incomplete. The answering

affidavit was filed without attaching a single one of the documents
referred to by the respondent’s expert. This necessitated
the
applicant to serve a Rule 35(12)
[67]
Notice on the respondent. What makes matters worse is the fact that
about a month after the answering affidavit was filed; the
respondent
served the second part of the expert’s opinion. Similarly to
the first part, the second part of its expert’s
opinion refers
to various documents without attaching any. The respondent was again
forced to serve a new Rule 35(12) applicant
on the respondent
relating to the belated supplementary expert opinion.
[68]
[110]
The applicants also referred to the fact that the respondent was in
particularly obstructive in refusing to furnish the applicants
with a
copy of the s-called “Adoption Report” (“
The
Perceptions, Understanding and Beliefs of People towards Adoption and
Blockages which prevent Communities from Adopting Children
in South
Africa”
)
[69]
.
The respondent submitted that since it did not rely on the Adoption
Report it was therefore not incumbent upon them to make the
report
available. The respondent also insisted that the Report was in the
public domain. In respect of the latter, it was denied
by the
applicants that the Adoption Report was in the public domain. This
necessitated the applicants to approach the Court for
an appropriate
order. On 6 March 2014, the Deputy President of this Division granted
an order ordering the respondent to make available
the Adoption
Report and to make available copies of various articles and chapters
in books referred to by Professor Van Bogaert
in her expert opinion.
It is common cause that despite this order, the respondent still has
not made available six articles.
[111]
The respondent conceded in argument that the applicants should be
entitled to the costs in respect of the interlocutory application.

However, in an attempt to explain the respondent’s blatant
refusal to furnish the Adoption Report, the argument was advanced

from bar that the respondent relied on section 248 of the Act in
refusing to disclose. It was, however, conceded that this view
was
misconceived and that the applicants are entitled to their costs.
[112]
I have decided that the applicants are entitled to a special costs
order. Firstly, if regard is had to the correspondence,
the
respondent was blatantly obstructive in its refusal to furnish the
Adoption Report. The applicants on the other hand, attempted
to avoid
approaching this Court by writing numerous letters urging the
respondent to furnish the information. Secondly, the Adoption
Report
was in the possession of the respondent. After all, the respondent
instructed the HRSC to compile the Report. Thirdly, the
respondent
explicitly stated that she would only provide the applicants with the
Adoption Report if forced to do so by an order
of court. Fourthly, if
the contents of the Adoption Report is, viewed in the context of this
matter and, viewed against the submission
advanced on behalf of the
respondent that adoption is a viable option to the first applicant,
it is clear that the Adoption Report
is of considerable importance to
the applicants and that the Adoption Report contains information that
is highly relevant to salient
aspects of this constitutional
challenge. What is of concern to the Court is the fact that in her
answering affidavits the respondent
made several bare denials to
statements by the applicants regarding adoption. On behalf of the
applicants it was submitted that
these bare denials by the respondent
are directly contradicted not only by the Adoption Report but also by
the respondent’s
department co-authored article on Adoption.
[113]
I am in agreement with the applicants that the respondent has
flagrantly disregarded her constitutional duty in respect of
ensuring
that all relevant evidence was timeously is placed before the Court.
[114]
Accordingly, although I am mindful that this matter concerns
constitutional litigation and that a Court should be hesitant
to make
an adverse cost order in these types of matters, I am nonetheless of
the view that the respondent’s conduct warrants
a special costs
not only in respect of the main application but also in respect of
the interlocutory application.
Order
[115]
In the event the following order is made:
1.
Section 294 of the Children’s Act,
Act 38 of 2005, is inconsistent with the Constitution of the Republic
of South Africa and
invalid;
2.
The respondent is directed to pay the cost
of the application, including the costs incumbent upon the employment
of two counsel,
and including the qualified costs of all the experts
who provided their expert opinions on affidavit for the second
applicant,
on a scale as between attorney and client;
3.
The respondent is directed to pay the costs
of the interlocutory application that was filed on 25 February 2014,
including the costs
incumbent upon the employment of two counsels, on
a scale as between attorney and client.
AC
BASSON, J
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA, PRETORIA
Appearances:
For
the Applicant: Advocate Donrich Jordaan
with
Advocate Christopher Woodrow
Instructed
by :
For
the Respondents : Advocate Nelly Cassim SC
with
Advocate Happy Mpshe
Instructed
by : The State Attorney
[1]
Act
38 of 2005.
[2]
See
section 297 of the Act in respect of the effects of a valid
surrogate motherhood agreement.
[3]
Section
295 of the Act sets out the requirements that must be met before a
Court will confirm a surrogate motherhood agreement
to be valid.
[4]
This
condition is referred to in this judgment as
“
pregnancy-infertility
”
.
See the discussion hereinbelow.
[5]
The
Act defines a gamete as follows: “
'gamete'
means
either of the two generative cells essential for human
reproduction;
”
[6]
Section
292 prescribes the formalities that must be complied with for a
surrogate motherhood agreement must comply with. In terms
of section
293 both husband and wife or partner must consent to confirm the
surrogate motherhood agreement. Section 295 sets
out the conditions
that must be complied with before a Court may confirm a surrogate
agreement. In terms of section 296 artificial
insemination of the
surrogate mother can only take place after the Court has confirmed
the agreement. In terms of section 197(1)
the child born to the
surrogate mother becomes the child of the commissioning parents from
the moment of the birth of the child.
. The surrogate mother or her
husband or partner has no rights of parenthood or care of the child.
The child so born will also
have no claim for maintenance or of
succession against the surrogate mother, husband or partner subject
to the provisions of
section 292 and 293. An agreement that does not
comply with the Act is invalid and the child born as a result of
such an agreement
is deemed to the child of the woman who gave birth
to the child. Section 299 and 300 set out the grounds for
terminating the
surrogate motherhood agreement.
[7]
See
herein below for a discussion of what constitutes “the class”
and the “sub-class”.
[8]
Constitution
of the Republic of South Africa Act 108 of 1996.
[9]
Dated
28 June 2013.
[10]
87%
were married couples; 11% were unmarried couples and 2% (one person)
was single. 76% are heterosexual and 24% are gay. 80%
are white and
20% are black.
[11]
I
have already referred to the fact that there may be a class of
parent(s) who may not want to donate a gamete for other reasons
such
as where they are carriers of a genetic disease which they do not
wish to carry over.
[12]
Sue
A Meinke – Surrogate Motherhood : ethical and Legal Issues
describes
the concept of surrogacy and the concerns as follows: “
Among
the many applications of the new reproductive technologies
(including artificial insemination by donor – AID, In Vitro

fertilization- IVF, embryo transfer and embryo freezing) surrogate
motherhood has far-reaching consequences that it raises a
multitude
of ethical and legal questions…What distinguishes surrogacy
from other reproductive technologies is not the
technology itself
but the circumstances of its application… an arrangement
whereby one woman bears a child for another
with the intention of
relinquishing the infant at birth.”
[13]
See
Du
Toit and Another v Minister of Welfare and Population Development
and Others
[2002] ZACC 20
;
2003 (2) SA 198
(CC) at par
[19]
.
[14]
Paragraph
E2(2)(d)(ii) of the Report.
[15]
Ad
Hoc Committee Report ad paragraph E1(2)(e).
[16]
2014
(3) SA 415
(GNP).
[17]
Ibid
,
par [49] and [51] footnotes omitted.
[18]
J
and Another v Director General, Department of Home Affairs and
Others
2003 (5) SA 621 (CC).
[19]
Ibid
at par [2].
[20]
Ibid.
[21]
2002 (6) SA 1
(CC) at par [11].
[22]
Of
1985.
[23]
Of
2008.
[24]
Carnelly
& Soni 2012 De Jure pages 179-188.
[25]
See
section 54(2) of the Human Fertilisation and Embryology Act of 2008.
[26]
In
fact in Tasmania  (in terms of the Tasmania Surrogacy Act of
2012) it is specifically legislated that: “
(2)
Subject to subsection (1), this Act is to be administered according
to the following principles: …..
(b)
the same status, protection and support should be available to a
child born as a result of a surrogacy arrangement regardless
of
(i)
how the child was conceived under the arrangement; or
(ii)
whether there is a genetic relationship between the child and any
of the parties to the arrangement or; …”
[27]
A
Comparative Study on the Regime of Surrogacy in EU Member States
(Brussels: European Parliament's Committee on Legal Affairs)
at 303.
[28]
See
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) where permanent same sex lie partners have been
granted the right to jointly adopt children.
[29]
Ibid
at 307.
[30]
Brinet,
Laurence et al., A Comparative Study on Regime of Surrogacy in EU
Member States (Brussels: European Parliament’s
Committee on
Legal Affairs), p201
http://www.europa.es/RegDatn/etudes/join/2013/474403/ipolJURI_ET%282813%29474403_EN.pdf.
[31]
‘
State-by-State
Surrogacy Summary’ (The Center for Bioethics and Culture,
2012) (http://www.cbc
network.org)
[32]
See
for example
Buzzanca
v Buzzanca
72 Cal Rptr 2d 280
(Cal Ct App 1998)
.
[33]
Uniform
Parentage Act (United States of America).  Revised in 2000 and
amended in 2002. AAG, comment p 69: “
[T]he
restriction..that at least one of the intended parents would be
genetically related to the child born of the gestational
agreement
.”
[34]
Act
108 of 1996.
[35]
2001
(1) SA 545 (CC).
[36]
2005
(3) SA 589
(CC) at par [90] –[91].
[37]
1999
(3) SA 191 (CC).
[38]
2001
(4) SA 491 (CC).
[39]
Ex-parte
MS and others supra at par [49] and [51].
[40]
[2007] ZACC 5
;
2007
(5) SA 323
(CC).
[41]
2007
(5) SA 250 (CC).
[42]
2002
(6) SA 642 (CC).
[43]
[1995] ZACC 3
;
1995
(3) SA 391
(CC):
"[156]
In reaction to our past, the concept and values of the
constitutional State, of the 'regstaat', and the constitutional

right to equality before the law are deeply foundational to the
creation of the 'new order' referred to in the preamble. The

detailed enumeration and description in s 33(1) of the criteria
which must be met before the Legislature can limit a right

entrenched in chap 3 of the Constitution emphasise the importance,
in our new constitutional State, of reason and justification
when
rights are sought to be curtailed. We have moved from a past
characterised by much which was arbitrary and unequal in the

operation of the law to a present and a future in a constitutional
State where State action must be such that it is capable of
being
analysed and justified rationally. The idea of the constitutional
State presupposes a system whose operation can be rationally
tested
against or in terms of the law. Arbitrariness, by its very nature,
is dissonant with these core concepts of our new constitutional

order. Neither arbitrary action nor laws or rules which are
inherently arbitrary or must lead to arbitrary application can, in

any real sense, be tested against the precepts or principles of the
Constitution.  Arbitrariness must also inevitably, by
its very
nature, lead to the unequal treatment of persons. Arbitrary action
or decision-making is incapable of providing a rational
explanation
as to why similarly placed persons are treated in a substantially
different way. Without such a rational justifying
mechanism, unequal
treatment must follow.”
[44]
[2005] ZACC 19
;
2006
(1) SA 524
(CC):“
[60]
A democratic, universalistic, caring and inspirationally egalitarian
society embraces everyone and accepts people for who
they are. To
penalise people for being who and what they are is profoundly
disrespectful of the human personality and violatory
of equality.
Equality means equal concern and respect across difference. It does
not presuppose the elimination or suppression
of difference. Respect
for human rights requires the affirmation of self, not the denial of
self. Equality therefore does not
imply a levelling or
homogenisation of behaviour or extolling one form as supreme, and
another as inferior, but an acknowledgment
and acceptance of
difference. At the very least, it affirms that difference should not
be the basis for exclusion, marginalisation
and stigma. At best, it
celebrates the vitality that difference brings to any society. The
issue goes well beyond assumptions
of heterosexual exclusivity, a
source of contention in the present case. The acknowledgment and
acceptance of difference is particularly
important in our country
where for centuries group membership based on supposed biological
characteristics such as skin colour
has been the express basis of
advantage and disadvantage. South Africans come in all shapes and
sizes. The development of an
active rather than a purely formal
sense of enjoying a common citizenship depends on recognising and
accepting people with all
their differences, as they are. The
Constitution thus acknowledges the variability of human beings
(genetic and socio-cultural),
affirms the right to be different, and
celebrates the diversity of the nation. Accordingly, what is at
stake is not simply a
question of removing an injustice experienced
by a particular section of the community. At issue is a need to
affirm the very
character of our society as one based on tolerance
and mutual respect. The test of tolerance is not how one finds space
for people
with whom, and practices with which, one feels
comfortable, but how one accommodates the expression of what is
discomfiting
.”
[45]
Prinsloo
v Van der Linde
1
997(3)
SA 1012 (CC): “[25]
“
It
is convenient, for descriptive purposes, to refer to the
differentiation presently under discussion as “mere
differentiation”.
In regard to mere differentiation the
constitutional state is expected to act in a rational manner. It
should not regulate in
an arbitrary manner or manifest “naked
preferences” that serve no legitimate governmental purpose,
for that would
be inconsistent with the rule of law and the
fundamental premises of the constitutional state.  The purpose
of this aspect
of equality is, therefore, to ensure that the state
is bound to function in a rational manner.”
[46]
Harksen
v Lane NO and Others
1998 (1) SA 300 (CC).
[47]
I
bid
at par [46].
[48]
Rodrigues
Expert Opinion, par 32.1.
[49]
Ibid
par 10–11.
[50]
Dated
March 2012.
[51]
My
emphasis.
[52]
Ibid.
[53]
The
term “
recipient
”
is defined in Regulation 1 as: “
A
female person in whose reproductive organs a male gamete or gametes
are to be introduced by other than natural means, or in
whose
uterus/womb or fallopian tubes a zygote or embryo is to be placed
for the purpose of human reproductio
n.”
[54]
Extensive
submissions were made in respect of whether this Court should or
could rely on the expert opinion of Professor Van Bogaert.
I do not
intend to repeat those submissions. Suffice to state that the
criticisms levelled against Professor Van Bogaert are
well founded.
I have thus concluded that little if not no reliance could be placed
on her opinion.
[55]
Jadva
Expert Opinion, par [4] and [5.2].
[56]
Ibid
,
par [68].
[57]
Ibid
,
par [69]–[72].
[58]
Poverty
Alleviation Network and Others v President of the Republic of South
Africa and Others
2010
JDR 0111 (CC) the Court held as follows:
“
[65]
The principle that every law and every exercise of public power
should not be arbitrary but rational has been developed by
this
Court in a series of judgments. This principle sets rationality as a
necessary condition for legal validity that every law
or act of
organs of state should fulfil.
[66]
In
Merafong,
the Court, per Van der Westhuizen J,
stated the following:  ““What is required, insofar
as rationality may be
relevant here, is a link between the means
adopted by the legislature and the legitimate governmental end
sought to be achieved.
It is common cause that doing away with
cross-boundary municipalities is desirable for improved service
delivery and governance.
This is the purpose of the Twelfth
Amendment.  More ways than one of achieving the objective are,
however, available, namely
to locate Merafong either wholly in
Gauteng or wholly in North West.  From economic, geographical
and other perspectives
the choice can be debated, but it is one for
the legislature to make.
It is not for this court
to decide in which province people must live or to second-guess the
option chosen by the Gauteng Provincial
Legislature to achieve its
policy goals and thus to make a finding on how socially,
economically or politically meritorious the
Twelfth Amendment is.
”
(Emphasis added.)”
[59]
Teddy
Bear Clinic for Abused Children RAPCAN and Minister of Justice and
Constitutional Development  Other
2014
(2) SA 168
(CC): “
[52]…
While dignity is a cornerstone of our constitution, it is not easily
defined, at least in legal terms. Suffice it
to say that dignity
recognises the inherent worth of all individuals (including
children) as members of our society, as well
as the value of the
choices that they make. It comprises the deeply personal
understanding we have of ourselves, our worth as
individuals in our
material and social context.”
[60]
[1996] ZACC 2
;
1996
(2) SA 751
(CC) at par
[67]
.
[61]
NM
and Others v Smith and Others 2007 (5) SA 250 (CC).
[62]
Ad
Hoc
Committee Report, E9(9)(d) (pp352–353).
[63]
“
172.
Powers of courts in constitutional matters
.
—(1)
When deciding a constitutional matter within its power, a court—
(a)
must declare that any law or conduct that is inconsistent with
the
Constitution
is
invalid to the extent of its inconsistency; and
(b)
may make any order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority
to correct the
defect.
(2)
(a) The Supreme Court of Appeal, the High Court of South Africa or a
court of similar status may make an order concerning
the
constitutional validity of an Act of Parliament, a provincial Act or
any conduct of the President, but an order of constitutional

invalidity has no force unless it is confirmed by the Constitutional
Court.
(b)
A court which makes an order of constitutional invalidity may grant
a temporary interdict or other temporary relief to a party,
or may
adjourn the proceedings, pending a decision of the Constitutional
Court on the validity of that Act or conduct.
(c)
National legislation must provide for the referral of an order of
constitutional invalidity to the Constitutional Court.
(d)
Any person or organ of state with a sufficient interest may appeal,
or apply, directly to the Constitutional Court to confirm
or vary an
order of constitutional invalidity by a court in terms of this
subsection.
[64]
[2002] ZACC 22
;
2002
(6) SA 642
(CC) at par
[126]
.
[65]
2006
(2) SA 230 (CC).
[66]
My
emphasis.
[67]
The
first Rule 35(12) application is dated 20 December 2013. In this
application the respondent was requested to produce various
articles
referred to by the respondent’s expert in her opinion.
[68]
In
terms of the second Rule 35(12) application dated 17 January 2014,
the respondent was requested to furnish copies of various
additional
articles and chapters in books referred to by the respondent’s
expert in her opinion. A third Rule 35(12) applicant
is dated 28
January 2014.
[69]
Prepared
by the Human Sciences Research Council for the Directorate of
Adoptions and International Social Services, National Department
of
Social Development.