AB and Another v Minister of Social Development (CCT155/15) [2016] ZACC 43; 2017 (3) BCLR 267 (CC); 2017 (3) SA 570 (CC) (29 November 2016)

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[2016] ZACC 43
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AB and Another v Minister of Social Development (CCT155/15) [2016] ZACC 43; 2017 (3) BCLR 267 (CC); 2017 (3) SA 570 (CC) (29 November 2016)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 155/15
In the matter
between:
AB
First Applicant
SURROGACY ADVISORY
GROUP
Second Applicant
and
MINISTER OF SOCIAL
DEVELOPMENT
Respondent
and
CENTRE FOR CHILD
LAW
Amicus Curiae
Neutral
citation:
AB
and Another v Minister of Social Development
[2016]
ZACC 43
Coram:
Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J,
Froneman J, Jafta J, Khampepe J, Mhlantla J, Madlanga J,
Nkabinde J and Zondo
J
Judgments:
Khampepe J (minority): [1] to [236]
Nkabinde J (majority): [237] to [330]
Heard on:
1 March 2016
Decided on:
29 November 2016
Summary:
surrogate motherhood agreement —
statutory genetic origin requirement — whether irrational —
whether limits commissioning
parent’s rights to equality,
dignity, reproductive autonomy, reproductive health care, and privacy
— best interests
of the child
ORDER
In respect of the
application for confirmation of the order of the High Court of South
Africa, Gauteng Division, Pretoria, the following
order is made:
1.
The order of constitutional invalidity in
respect of section 294 of the Children’s Act 38 of 2005 made by
the High Court of
South Africa, Gauteng Division, Pretoria is not
confirmed.
2.
The appeal by the respondent is upheld.
3.
The High Court costs order, in paragraphs 2
and 3, in favour of the applicants, is confirmed.
4.
The respondent is ordered to pay the
applicants’ costs in this Court including the costs of two
counsel.
JUDGMENT
KHAMPEPE J (Cameron
J, Froneman J and Madlanga J concurring):
Introduction
[1]
The decision to have a child of
one’s own has for thousands of years formed a central part of
the lives of human beings.
It is a blessing that is for the
most part taken for granted.  The effects of an inability to
carry out that decision have,
for so many of us, been nothing short
of devastating.  Laura Bush puts it eloquently when she writes
that—
“
[t]he
English language lacks the words to mourn an absence.  For the
loss of a parent, grandparent, spouse, child or friend,
we have all
manner of words and phrases, some helpful some not.  Still we
are conditioned to say something, even if it is
only ‘I’m
sorry for your loss’.  But for an absence, for someone who
was never there at all, we are wordless
to capture that particular
emptiness.  For those who deeply want children and are denied
them, those missing babies hover
like silent ephemeral shadows over
their lives.  Who can describe the feel of a tiny hand that is
never held?”
[1]
[2]
We are not in any way short of words
when it comes to describing the effects of experiencing infertility:
grief; sadness; despair;
panic; helplessness; and isolation are but a
few of the feelings that often ensue.  For a large number of
people, infertility
has been “the most upsetting experience of
their lives”.
[2]
For others, infertility is rated as comparably stressful to the loss
of a partner or a child.
[3]
The likelihood of depression has been shown to double for women who
are infertile.
[4]
Disturbingly, infertility levels are on the rise globally, with one
in every ten people facing infertility problems.
[5]
[3]
We are fortunate, however, to live
in an era where the effects of infertility can be ameliorated to a
large extent through assistive
reproductive technologies.  The
technological advances seen over the last half century have greatly
expanded the reproductive
avenues available to the infertile.
These reproductive avenues should be celebrated as they allow our
society to flourish
in ways previously impossible.
[4]
At the heart of this matter lies the
question of the extent to which the state may regulate the
reproductive opportunities available
to those who are unable to have
children of their own because they are conception and pregnancy
infertile.
[6]
Parties
[5]
The first applicant is cited as “AB”
pursuant to a court order intended to protect her identity.
[7]
She is an adult who wishes to enter into a surrogacy agreement in
order to have a child of her own.  The second applicant
is the
Surrogacy Advisory Group (Surrogacy Group), a voluntary association
of medico-legal practitioners and other professionals
experienced in
the field of infertility that offer education, advice and support,
free of charge, to persons considering entering
into surrogacy
agreements in order to become parents.  The Surrogacy Group
seeks to promote and protect the interests of surrogate
mothers and
commissioning parents.
[6]
The respondent is the Minister of
Social Development (Minister), cited in her capacity as the Minister
responsible for the administration
of the Children’s Act.
[8]
[7]
The Centre for Child Law (Centre)
was admitted as amicus curiae.  It is a law clinic registered
with the Law Society of the
Northern Provinces.  Its primary
objectives are establishing and promoting child law as well as
upholding the rights of children
in South Africa within an
international and regional context.  I am grateful to the Centre
for its contributions to these
proceedings.  They have been of
valuable assistance.
Factual
background
[8]
AB has admirably persevered in
distressing circumstances.  Between 2001 and 2011, she underwent
18
in vitro
fertilisation
(IVF) cycles which were all unsuccessful in helping her fall
pregnant.  These attempts went through several phases:
(a)
In 2001, AB attempted to fall pregnant by undergoing two cycles of
IVF treatment using her
own ova and her then-husband’s sperm.
She was in her early 40s at the time.  The couple’s
endeavours proved
unsuccessful on both occasions.  After the
second cycle failed, AB’s gynaecologist advised her that it
would no longer
be feasible to continue harvesting her own ova; she
could no longer supply her own gametes for the purpose of conceiving
a child.
(b)
For this reason, AB undertook a third IVF cycle using anonymous donor
ova and the sperm
of her then-husband.  After this attempt
failed, the process was repeated for a fourth time.  This
attempt was likewise
unsuccessful.
(c)
In 2002, after 20 years of marriage, AB’s relationship with her
husband ended in divorce.
This did not weaken her resolve to
have a child.  She began using anonymous donor ova as well as
donor sperm, repeating the
process nine times, on each occasion
unsuccessfully.
(d)
In 2009, AB switched fertility clinics.  At the new clinic, a
further five IVF cycles
resulted in AB falling pregnant on two
occasions, each time ending in miscarriage.  Following her
second miscarriage, AB was
informed that the chances of successful
conception by way of IVF treatment had become, in the words of Dr
Cassim, her gynaecologist
at the new clinic, “highly improbable
if not impossible”.  AB is thus permanently and
irreversibly infertile in
two different senses: first, she is unable
to contribute her own gametes for conception; and second, she is
unable to carry a pregnancy
to term.
[9]
[9]
Later in 2009, Dr Cassim recommended
that AB look into surrogacy as a means to have a child.  Through
the surrogacy programme
of
Baby2Mom
– a surrogacy facilitation agency – she was put in touch
with a potential surrogate mother, who agreed to act for her.

As a single woman unable to donate her own ova, the only way for AB
to proceed was to use both donor ova and donor sperm, as she
had done
over the course of the last 14 of the total of 18 IVF cycles she had
undergone.
[10]
However, on consulting an attorney,
AB was informed that she could not enter into a surrogacy agreement
without contributing a gamete
to the surrogacy process.
Specifically, AB was made aware that she, as a single woman incapable
of donating a gamete, could
not legally enter into a surrogacy
agreement because of section 294 of the Children’s Act.
[10]
To use her own words, AB experienced a “mixture of shock,
sadness and bafflement”.
[11]
Against this backdrop, AB approached
the High Court of South Africa, Gauteng Division, Pretoria (High
Court), seeking an order declaring
section 294 of the Children’s
Act inconsistent with the Constitution and invalid.  The
Surrogacy Group and the Centre
were subsequently joined as second
applicant and amicus curiae respectively.
In the High Court
[12]
The applicants’ constitutional
challenge in the High Court was grounded in their assertion that
section 294 violates the rule
of law, as well as the rights to
equality, human dignity, “reproductive autonomy”, privacy
and access to healthcare.
[13]
The Minister opposed the application
on several grounds, namely that:
(a)
It was not only AB’s rights that were at issue, but also those
of the child to be
created by the surrogate mother and donor(s).
The prospective child had the right to know its genetic origins.
(b)
The adoption process in South Africa catered for AB’s need to
have a child.
(c)
To allow a single infertile person to create a child with no genetic
link to her would result
in the creation of a “designer”
child.  This would not be in the public interest.
(d)
Section 294 prevents commercial surrogacy.
[14]
In its reply, the Surrogacy Group
asserted that none of these grounds offered sufficient justification
for the retention of the
offending provision.  Seeing as the
Minister had not offered a proper justification for the purported
violation of the rights
listed above,
[11]
the Surrogacy Group sought an order declaring section 294 of the
Children’s Act inconsistent with the Constitution and invalid.
[15]
The High Court’s judgment was
penned by Basson J.
[12]
I do not propose to retrace the judgment in detail.  In sum, the
High Court came to the conclusion that section 294
of the Children’s
Act unjustifiably violates AB’s rights to equality, human
dignity, “reproductive autonomy”,
privacy and access to
health care.  It accordingly declared the section
constitutionally invalid.  The Court also granted
a special
costs order against the Minister.
[16]
The High Court’s declaration
of constitutional invalidity triggered this Court’s
confirmation jurisdiction.
[13]
In this Court
The applicants’
submissions
[17]
The Surrogacy Group asserts that the
High Court judgment is correct, both in fact and in law, and that the
declaration of invalidity
should therefore be confirmed.
[14]
In its view, “families without a parent-child genetic link are
just as valuable as families with such a link”
in our
constitutional dispensation.
[18]
The applicants accept that one of
the purposes of section 294 of the Children’s Act is
to guarantee that a child
to be born as a consequence of a surrogate
motherhood agreement is genetically related to at least one of her
commissioning parents.
[15]
The Surrogacy Group argues, however, that this purpose does not
immunise the provision from constitutional scrutiny.
It
frequently refers to what it calls the “threshold
requirement”.  This is defined as “the requirement

found in section 295(a) of the Children’s Act, namely that
the commissioning parent or parents must not be able to give
birth to
a child and that such condition must be permanent and irreversible”.
[19]
The Surrogacy Group also draws a
distinction in its written submissions between what it terms the
“Class” and the “Subclass”.
This same
terminology is adopted by the High Court.  Members of the Class
are “persons who fulfil the threshold
requirement and who
intend to use surrogacy as a method to become parents”.
Members of the Subclass are “members
of the Class who 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”.  The Subclass, they maintain,
is a subset of the Class.
Accordingly, persons like AB, by
virtue of being both conception and pregnancy infertile, are members
of both the Class and the
Subclass.
[20]
The Surrogacy Group argues that
section 294 of the Children’s Act separately infringes the
rights of members of the Class
to equal protection before the law,
human dignity, “reproductive autonomy” and privacy.
Additionally, as
members of the Subclass, persons like AB are
unfairly discriminated against and are denied access to reproductive
healthcare.
[21]
Relying on
Makwanyane
,
[16]
the Surrogacy Group reasons that our Constitution is value-based.
One of these values is autonomy.  In its view, because
autonomy
is a value underlying the Constitution, it is “axiomatic”.
It is not an entitlement granted by the state.
Nor does an
exercise of autonomy need to be justified by the person exercising
it.  It further emphasises that the choice
to reproduce and the
manner in which one exercises that choice is an important act of
autonomy; it is central to an individual’s
life plan.  The
Surrogacy Group does not suggest that autonomy amounts to a
self-standing right.  Instead, it contends
that autonomy is a
lens through which the individual rights allegedly violated must be
viewed when delineating their scope.
[22]
Once rights contained in the Bill of
Rights have been limited, the Surrogacy Group points out that
the party defending the
rights violation – the Minister in this
case – bears the burden to justify that violation.  It
further asserts
that none of the justifications offered by the
Minister have merit.  This because, in the first place, it has
successfully
shown that none of the justifications for the
differentiation posited suggest a rational nexus between section 294
and its purported
purpose.  Section 294 is accordingly out of
step with the rule of law.  Secondly, the limitation of
constitutional rights
brought about by section 294 is not reasonable
and justifiable in terms of section 36 of the Constitution.
[23]
Moreover, the Surrogacy Group claims
that the purpose of section 294 contended for by the state
cannot qualify as a “legitimate
government purpose” in
our constitutional dispensation.  Accordingly, the only
appropriate remedy is the striking down
of section 294.  In sum,
it supports the confirmation of the High Court order without
alteration.
The Minister’s
submissions
[24]
The Minister submits that none of
the rights enumerated by the applicants are violated by section 294.
The Minister also asserts
that, even if this Court were to come to
the conclusion that some or all of the rights have been infringed,
such an infringement
comes as a result of the Children’s Act’s
promotion of legitimate government purposes.  The limitations
are therefore
reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom.
[25]
The Minister asserts that section
294 exists for the protection of the best interests of children.
According to the Minister,
section 294 is there to ensure the
protection of children that may be born as a result of surrogacy
agreements.  It prevents
commercial surrogacy and the
commodification of children, neither of which are in the best
interests of prospective children.
Additionally, section 294
exists to ensure that the adoption process is not “circumvented”.
[26]
She further argues that the High
Court erred in not considering the interests of the infertile person
vis-à-vis the interests
of “all the parties concerned”,
including the unborn child.  By focusing exclusively on the
needs of the infertile
person the needs of the child become
secondary.  This is unacceptable given that “[t]he unborn
child’s best interests
are paramount in every matter concerning
him or her”.  The Minister also submits that the child
“has a right to
dignity and the right to development in
uterus”.  Accordingly, this Court should decline to
confirm the High Court’s
order.
[27]
In the event that this Court comes
to the conclusion that section 294 is constitutionally impermissible,
the Minister suggests that
it would be appropriate, and in accordance
with the doctrine of separation of powers, to suspend the declaration
of invalidity
for a period of 18 months.  Alternatively, the
Minister suggests that the following words be read into section 294:
“In
exceptional circumstances and on application to court, an
exemption [of compliance] may be allowed”.
[28]
Finally, the Minister asserts that
it was inappropriate for the High Court to grant a special costs
order in the applicants’
favour.  She accordingly asks
this Court to set that order aside.
The Centre’s
submissions
[29]
The Centre posits that the purpose
of Chapter 19 of the Children’s Act in general, and of section
294 in particular, is to
regulate surrogacy agreements in order to
protect the rights of the child to be born.  This purpose, they
contend, is achieved
by ensuring that the child knows her genetic
origin.  It argues that the heading of section 294,
“Genetic origin
of child”, is indicative of this.
In its view, genetic origin is something that belongs to the
prospective child.
The Centre insists that the risk to
children’s self-identity and self-respect – their dignity
and best interests –
is all important.  Section 294
is accordingly rationally connected to the purpose of ensuring that
children know
their genetic origin.
[30]
The Centre further points out that
section 41(2) of the Children’s Act provides that the
information revealed to anyone born
of a surrogacy agreement may
never disclose the identity of the person or persons whose gamete or
gametes were used.  The
Centre sees the withholding of this
information as harmful to the best interests of children.  It
essentially gives three
reasons for this assertion, namely that:
(a)
Knowing one’s genetic origins is
essential to human wellbeing.
(b)
People have a right to the truth about
their origins.
(c)
Children who are aware that they are
donor-conceived suffer psychologically when they are denied
information about their origins
and identity.
[31]
The Centre argues that international
law supports the approach that donor conceived children have a
right to know their genetic
parents.  Moreover, there is a
developing global trend towards what it terms “openness”:
the disclosure of identifying
information to donor-conceived
children, where assistive reproductive technologies like surrogacy
are used.
[32]
It also opines that the state has a
duty to use legislative power to ensure that donor-conceived children
are aware of their status
and the nature of their conception, and
that the state should allow them access to identifying information
regarding their donor.
Section 294 provides some protection in
this respect; it ensures that children born of surrogacy agreements
will at least be able
to ascertain the identity of one of their
genetic parents.  As a result, the Centre concludes that section
294 is a
reasonable and justifiable
limitation on commissioning parents’ rights to dignity and
privacy.
Issues
[33]
The following issues arise:
(a)
The historical and legislative framework of
surrogacy and the effect and purpose of section 294 situated within
that framework.
(b)
Whether section 294, properly construed,
limits AB’s rights to psychological integrity,
[17]
human dignity, equality, privacy and access to reproductive health
care.
(c)
If so, whether it has been shown that
section 294 constitutes a reasonable and justifiable limitation of
AB’s rights.
(d)
If not, what the appropriate remedy is.
(e)
Costs, both in the High Court and in this
Court.
The historical and
legislative framework of surrogacy
[34]
Before the enactment of Chapter 19
of the Children’s Act, surrogacy was not expressly regulated in
South Africa by any legislation.
Nor does our jurisprudence
manifest any pre-constitutional judgments where parties approached
our courts in an attempt to enforce
a surrogacy contract.
[18]
Surrogacy as a concept, however, is not new.
[35]
The Bible, for instance, is replete
with examples of arrangements akin to surrogacy.  Perhaps most
well-known is the story
of Abram, Sarai and Hagar:
“
Sarai,
Abram’s wife, had not been able to bear children for him.
But she had an Egyptian servant named Hagar.
So Sarai said to
Abram, ‘The Lord has prevented me from having children.
Go and sleep with my servant.
Perhaps
I can have children through her
.”
[19]
[36]
Surrogacy arrangements have
also existed for some time in African customary law.
[20]
In other less enlightened times, African­American
slaves often acted as surrogate mothers for their owners.
[21]
In addition, the ancient Babylonian legal code of Hammurabi
acknowledged surrogacy arrangements as part of Babylonian law,
with
regulations specifying when it would be permitted, as well as the
respective rights of both wife and surrogate mother.
[22]
[37]
The type of surrogacy at issue in
the present matter is, however, narrower.  The Children’s
Act defines a “surrogate
motherhood agreement” as—
“
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.”
[23]
This
definition makes clear that the type of surrogacy we are dealing with
necessarily involves artificial fertilisation.
It stems from
the development of modern reproductive technologies, particularly
IVF.  The development of IVF technology paved
the way for modern
surrogacy arrangements; it forms part of the “artificial
fertilisation” process referred to in the
Children’s
Act.
[24]
By 1992, the South African Law Commission (SALC) had concluded that
the “practical application of existing legislation
[regulating
surrogacy] leaves much to be desired” as it “does not
provide adequate protection for the parties involved”.
[25]
[38]
In the same year, the SALC sought to
fill this lacuna.  It drafted the Surrogacy Bill and
proposed that Parliament adopt
it as an Act.  The Bill was never
passed.  In 2002, the SALC suggested that an amended version of
the Surrogacy Bill
be made a chapter of the new Children’s
Act.
[26]
The Legislature then set up an
Ad hoc
Select Committee (
Ad hoc
Committee) to make recommendations regarding the SALC’s
proposal.  The
Ad hoc
Committee subsequently compiled its own report (
Ad
hoc
Committee report).  Based on
this, the Legislature enacted Chapter 19 of the Children’s Act,
which presently regulates
surrogacy in our law.  The central
provisions of this chapter are outlined below.
[39]
Chapter 19, spanning sections 292 to
303 of the Children’s Act, delineates the procedural and
substantive boundaries of surrogate
motherhood agreements.
Section 292 sets out several prerequisites for a valid surrogate
motherhood agreement, including
that it must be in writing and
confirmed by a High Court in order for it to be valid.
Section 293 tells us when the
consent of the husband, wife or
partner of a commissioning parent is necessary, and when it can be
dispensed with.
[40]
Section 295 articulates further
requirements which, if not met, require a High Court to decline
confirmation of a surrogate
motherhood agreement.
Section 295(a) provides that a court “may not confirm a
surrogate motherhood agreement unless
. . . the commissioning parent
or parents are not able to give birth to a child and that the
condition is permanent and irreversible”.
Also important
is section 295(e), which provides that a High Court—
“
may
not confirm a surrogate motherhood agreement unless . . .
in
general
, having regard to the personal
circumstances and family situations of
all
the parties concerned
,
but
above all the interests of the child that is to be born
,
the agreement should be confirmed.”
[27]
[41]
Section 296(1) states that the
artificial fertilisation of a surrogate mother may not take place
before a surrogate motherhood agreement
has been confirmed by a
relevant High Court.  It further states that this agreement
lapses after a period of 18 months
from the date of its
confirmation by a relevant High Court.  Section 296(2)
dictates that any artificial fertilisation
contemplated in the
Children’s Act must comply with the provisions governing
artificial fertilisation contained in the
National Health Act.
[28]
[42]
Section 297 speaks to the effect of
surrogate motherhood agreements on the status of children.  A
child born out of surrogacy
is for all purposes the child of the
commissioning parents from the moment of her birth and the surrogate
mother is obliged to
hand over the child to them as soon as is
reasonably possible thereafter.
[29]
A surrogate motherhood agreement that does not comply with the
Children’s Act is invalid, and a child born of
this
agreement is deemed to be the child of the woman who gave birth to
her.
[30]
[43]
Section 298 regulates the
termination of surrogate motherhood agreements, and the effects of
termination are contained in section
299.  Section 300
incorporates the rights of surrogate mothers to terminate a pregnancy
in terms of the Choice on Termination
of Pregnancy Act.
[31]
It also vitiates any existing surrogate motherhood agreement in the
event of a termination of pregnancy.
[32]
[44]
Section 301 prohibits the receipt of
payment in respect of surrogate motherhood agreements,
[33]
and provides for limited exceptions such as the payment of medical
expenses.  Section 303(2) reinforces that commercial surrogacy

is unlawful by preventing anyone from facilitating surrogate
motherhood agreements in return for compensation.  Chapter 19

only permits surrogacy which is altruistic in nature.
Commercial surrogacy is prohibited, and is a punishable criminal
offence
which carries with it the potential of 20 years’
imprisonment.
[34]
[45]
Section 294 is headed “Genetic
origin of child”.  I repeat it here for ease of reference:
“
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.”
[46]
The Surrogacy Group calls this the
“Genetic Link Requirement”.  From a technical
perspective, this is a slight
misnomer.  The provision does not
merely require a genetic link, it requires a gamete from at least one
commissioning
parent
.
If a genetic link were to suffice, certain family members of would-be
commissioning parents could donate gametes for the
purposes of
artificial fertilisation.  Accordingly, where the Surrogacy
Group has used the term “Genetic Link Requirement”,
I
will simply refer to “section 294”.
[47]
The intended and actual effect of
section 294 is unambiguous: all children born of a surrogate
motherhood agreement must be conceived
by using the gamete of at
least one commissioning parent.
Does section 294 limit
constitutional rights?
[48]
I will answer this question by
considering first the constitutional value of freedom, and
subsequently the rights alleged to have
been violated.
Value of freedom
[49]
Our Constitution, “unlike its
dictatorial predecessor, is value-based”.
[35]
The rights in the Bill of Rights are sourced in constitutional
values; these rights give effect to the founding values and
must be
construed consistently with them.
[36]
In interpreting the meaning of rights for the purpose of establishing
whether they have been violated, we are consequently
obliged to take
constitutional values into consideration.  These values function
as interpretative aids through which we establish
the meaning of
constitutional rights.
[50]
One of the constitutional values in
section 1 of the Constitution includes the “advancement of
human rights and freedoms”.
[37]
O’Regan J explains in
NM
that
this provision encourages, “the constitutional celebration of
the possibility of morally autonomous human beings independently
able
to form opinions and act on them”.
[38]
The importance of autonomy has likewise been highlighted in
Barkhuizen
[39]
and
Jordan.
[40]
[51]
As Gerald Dworkin explains, autonomy
is a concept that bears many conceptions, encompassing “a
tangled net of intuitions,
conceptual and empirical issues, and
normative claims”.
[41]
Recent academic trends – which echo the lessons of our own past
– point to the inherently relational character
of the term: to
be autonomous is to be socially and politically connected, rather
than an agent of unfettered individual choice.
[42]
This Court’s repeated
endorsement
of ubuntu underscores this point.
[43]
In Pillay, Langa CJ explained that “an individual human person
cannot develop and
achieve the
fullness of his/her potential without the concrete act of relating to
other individual persons”.
[44]
Autonomy is a necessary, but socially embedded, part of the value of
freedom.
[45]
[52]
What animates the value of freedom
is the recognition of each person’s distinctive aptitude to
understand and act on their
own desires and beliefs.  The value
recognises the inherent worth of our capacity to assess our own
socially-rooted situations,
and make decisions on this basis.
By exercising this capacity, we define our natures, give meaning and
coherence to our lives,
and take responsibility for the kind of
people that we are.
[46]
This, in turn, enriches our community and contributes to healing the
divisions of the past.  Our Constitution actively
seeks to free
the potential of each person; a goal which can only be achieved
through a deep respect for the choices each of us
makes.
Freedom and security of
the person
[53]
T
he
value of freedom vivifies the rights protected by section 12 of the
Constitution.
[47]
This is especially true of section 12(2)(a); a right that centres on
the ability to make “decisions”.
[48]
The freedom protected by the right is not, however,
coextensive
with autonomy.  The ambit of section 12(2)(a) is narrower and
more specific.  In the absence of previous judicial
analysis by
this or other courts, the sections which follow outline my
interpretation of section 12(2)(a) in the context of the
present
case.
[54]
This Court has adopted a
purposive
[49]
and contextual
[50]
approach to interpreting the Constitution.  In doing so, we are
enjoined to provide a broad and generous reading in determining
the
ambit of constitutionally enshrined rights.
[51]
Because of the inclusion of the limitation clause in section 36,
rights should not be interpreted in a miserly fashion.
In the
section that follows, I consider the meaning of section 12(2)(a)
within the context of our jurisprudence on “freedom”
as a
whole; subsequently situating section 12, and then section 12(2)(a),
within this framework.
Freedom
[55]
This Court has repeatedly expressed
a reluctance to examine the “philosophical foundation or the
precise content” of
freedom.
[52]
This is an understandable approach in light of the numerous specified
rights that deal with different aspects of the broader
idea.
The Bill of Rights safeguards, for instance, freedom of religion;
belief and opinion; expression; association; movement
and residence;
and trade, occupation and profession.
[53]
These explicitly designated rights should be interpreted on their own
terms in order to give credence to their particular
inclusion.
The majority in
Ferreira
found
further that to ascribe a general right to freedom on the basis of
section 11(1) of the interim Constitution
[54]
would undermine the role of other arms of state in regulating
conduct.
[55]
The same Court nevertheless concluded that the Constitution does
protect certain “residual freedom[s]” that fall
outside
of specifically identified rights.
[56]
[56]
Chaskalson P summarises the Court’s
position as encompassing a two-stage inquiry:
[57]
(a)
Is the right not otherwise protected adequately by another provision
in Chapter 3 of the
interim Constitution?
(b)
If not, is the “residual right” claimed of a character
appropriate for protection
under section 11(1) of the interim
Constitution?
[57]
The Court defined “character
appropriate for protection” restrictively.  It explained
that “[t]he primary,
though not necessarily the only, purpose
of section 11(1) of the [interim] Constitution is to ensure that
the physical integrity
of every person is protected”.
[58]
This characterisation suggests that it will only be in exceptional
circumstances that freedoms not related to physical integrity
will be
protected.  Because additional forms of freedom are safeguarded
by other sections of the Bill of Rights, these exceptional

circumstances must involve the curtailment of “fundamental”
freedoms, and are “likely to be rare”.
[59]
[58]
The reasons behind this general
approach to “freedom” remain persuasive.  However,
in light of the enactment of
the Constitution the dicta from
Ferreira
have been, to some degree, modified.  To begin with, the
analogous provision in the Constitution to section 11(1) of the
interim Constitution, section 12(1), outlines in more detail what
rights fall under the auspices of “freedom and security
of the
person”.  Notably, section 12(1) also includes those
rights previously protected by section 11(2) of the
interim
Constitution.  The whole of section 11 of the interim
Constitution is therefore to a large extent represented by section

12(1) of the Constitution.
[60]
[59]
This is significant because the
Court in
Ferreira
grounded the “residual” right to freedom only in section
11(1) of the interim Constitution.  By combining section
11(1)
and section 11(2) into a composite right, the Constitution alters
this position.  Now, all of the rights previously
enumerated in
section 11 of the interim Constitution are linked with the residual
right to freedom in section 12(1) of the
Constitution.
Section 12(1), like section 11(1) in the interim Constitution,
provides a
general
right to freedom, grounded in bodily security.  Section 12(2),
however, falls into a different category.  As is the case
with
section 11(2) of the interim Constitution, section 12(2) – and,
therefore, section 12(2)(a) – provides for a new,
freestanding
and definitionally proscribed freedom right.
[60]
This distinction makes good sense.
The analysis of freedom in
Ferreira
as ordinarily a protection against physical impediment does not
accord with section 12(2)’s explicit focus on
integrity
,
and, in particular, on
psychological
integrity
.
As I read it, section 12(2) does not alter the general schematic
approach to freedom adopted by the Court in
Ferreira
.
Instead, it introduces a new freedom right, akin to those enumerated
elsewhere in the Bill of Rights.
[61]
One possible impediment to this
approach is the notable fact that section 12(2) is included under the
broad heading “Freedom
and security of the person”.
[61]
The
right
to freedom and security of the person is then protected specifically
by section 12(1).  I do not think that this suggests

section 12(2) is different in kind to the other freestanding freedom
rights.  As I see it, section 12(2)’s unique position
is
attributable to section 12(1) and 12(2) sharing the purpose of
protecting particular freedoms per se, rather than of protecting

freedoms in order to ensure secondary entitlements.  As the
title of the section suggests, section 12 is an amalgam of freedom

and security rights, brought together because both sets protect a
person’s ability to lead their lives without being subject
to
certain constitutionally prohibited impediments.  It is because
section 12(1) and section 12(2) share this underlying rationale
that
they are placed under the same heading.
[62]
A further difference between the
position under the interim Constitution and that under the
Constitution is that the Bill of Rights’
limitation clause is
no longer disjunctively defined.  Under the interim
Constitution, in order to limit particular “higher
order”
rights, the limitation had to be “necessary” in addition
to being “reasonable” and “justifiable”.
[62]
In
Ferreira
,
the majority of the Court relied on section 11(1) having to meet this
higher threshold to argue that the right should not be given
too wide
a meaning.
[63]
In terms of the Constitution, all rights can be limited if doing so
is reasonable and justifiable in an open and democratic
society based
on human dignity, equality and freedom.
[64]
The limitation clause thus no longer preserves the hierarchy at the
limitation stage present in the interim Constitution.
There is,
therefore, no reason to think that any of the rights in the Bill of
Rights should be restrictively defined.  For
this reason,
section 12(2)(a), despite forming part of the general entitlement to
freedom and security of the person, should be
given as broad a
reading as any other right.
Section 12
[63]
I have held that section 12(1)
continues to protect specific physical freedoms, along with a
residual right to freedom more generally
on exceptional occasions as
detailed in
Ferreira
.
By contrast, section 12(2) is a freestanding freedom right that
should be interpreted broadly on its own terms.
[64]
As noted, section 12(1) speaks
specifically of “the right to freedom and security of the
person”.  This right principally
provides procedural and
substantive protection for any deprivation of physical liberty.
[65]
All five listed dimensions of the right deal with unwarranted
incursions into the physical domain of individuals.  The
need
for protection against these harms is grounded in our history;
violence and physical deprivation of liberty was a regular
feature of
everyday life for many people.
[65]
But the lessons of our past have
taught us that freedom means more than just physical liberty.
Section 12(2) thus protects
“the right to bodily and
psychological integrity”.  There is a close connection
between the freedoms protected
by our Constitution and “integrity”.
The Constitution enjoins us to actively turn away from indifference
and
move towards respect, empathy and compassion.  The
protection section 12(2) provides is grounded in these ideals.

When interpreting the provisions of the Constitution, it is therefore
incumbent on us to enhance the integrity of those who seek
to rely on
it.
[66]
The importance of protecting bodily
and psychological integrity has long formed part of our law,
[66]
and is now buttressed by the Constitution.
[67]
This right is especially important for women who may, for instance,
decide to terminate a pregnancy in appropriate circumstances.
[68]
Section 12(2) is not, however, limited to preserving abortion rights:
section 12(2)(c) further protects against medical or
scientific
experiments without informed consent.  This suggests that
section 12(2) should be interpreted generously to cover
all instances
where the bodily or psychological integrity of a person is harmed.
These infringements can take a number of
guises, but should be
interpreted within the general rubric of “freedom and security
of the person”.  The emphasis
in section 12(2) is thus on
whether a law or conduct deprives a person of freedom or security,
broadly understood.  This general
guiding principle is
necessarily wider than the “freedom and security of the person”
protected by section 12(1); incorporating,
as it must, considerations
of bodily and psychological integrity.
[67]
The drafting history of section
12(2) supports this view.  Until a very late version, the
section protected “security
of the person” rather than
“bodily and psychological integrity”.
[69]
The change in language illustrates a shift in emphasis away from a
sanctuary approach that protects a person’s corpus,
towards one
which acknowledges the multifaceted lives people may choose to live
by providing for a more expansive range of bodily
and psychological
protections.  This adjustment in focus coheres with the lessons
of our past.  The defilements of integrity
that characterised
our pre-constitutional era extended beyond violations of personal
security.  The legal structure that marked
and marred the
apartheid era was one of disregard and disrespect.  The
Constitution thus enjoins us to develop a new understanding
of
“freedom and security of the person” that demonstrates
respect and attentiveness to the decisions of others.
The
inclusion of section 12(2) is one facet of this new approach.
[68]
That historically-grounded shift
builds on the recognition in our common law – chiefly in the
law of delict – that a
person’s psychological integrity,
independent of their body, can be harmed in numerous ways by the
actions of others.
[70]
In
NM
,
Madala J explained why the non-consensual disclosure of confidential
medical information, including the HIV status of the applicants,
can
be the basis of a claim for damages:
“
Private
and confidential medical information contains highly sensitive and
personal information about individuals.  The personal
and
intimate nature of an individual’s health information, unlike
other forms of documentation, reflects delicate decisions
and choices
relating to issues pertaining to bodily and psychological integrity
and personal autonomy.”
[71]
[69]
This description appositely
highlights the harm that emerges from the psychological stress caused
by the removal of the applicants’
choice
to disclose medical information, with subsequent damaging effects.
Disclosure of HIV status may be liberating or cathartic
if done
with the permission of the person affected.  To do so without
the backing of this decision is, however, an “assault”
on
the person’s psychological integrity.
[72]
The autonomy of the person involved is severely compromised,
irrespective of the outcome.  This is so even if the disclosure

is ostensibly for the public good.  A stifling of the ability to
make a decision can therefore be a violation of psychological

integrity, provided the consequences are of an invidious nature.
Section 12(2)(a)
[70]
Section 12(2)(a) protects the right
“to make decisions concerning reproduction”.
Conspicuously, it is the decision
that is protected, rather than any
particular choice.  Consequently, a person relying on this right
need only show that their
inability to make the decision –
resultant upon some law or conduct – has caused (at least)
psychological harm.
Section 12(2)(b) then also protects
“security in and control over [a person’s] body”.
These two rights
are often mutually reinforcing.  They remain,
however, independently enforceable.  In light of our history,
the Constitution’s
account of freedom, and the purpose of
section 12, it is fitting that these rights are separately
protected.  Both decisions
concerning reproduction and the
possible physical implications of these choices are crucial to an
individual’s wellbeing.
[71]
AB is a single person who intends to
have a child by way of surrogacy but is unable to donate a gamete of
her own.  Clearly,
this process has no physical implications for
her.  The same can be said of any single person or couple who
wishes to rely
on surrogacy without donating a gamete of their own.
Therefore, a constitutional challenge of section 294 cannot be
grounded
in section 12(2)(b).
[72]
Instead, it falls to be determined
whether section 294 objectively prevents persons from making a
decision concerning reproduction
in a manner which is detrimental to
their psychological integrity in terms of section 12(2)(a).
This inquiry comprises three
parts:
(a)
Does the impugned law or conduct prevent or inhibit a person or group
of persons from making
a decision?
(b)
If the answer to (a) is yes, does the decision concern reproduction?
(c)
If the answer to (b) is yes, does preventing or inhibiting the
decision detrimentally affect
the psychological integrity of the
person or persons concerned?
Each of these questions is
considered in turn below with reference to section 294.
Decision
[73]
Section 294 forbids a court from
sanctioning a surrogate agreement unless the gamete of at least one
commissioning parent is used
in the conception of the child.  An
implication of this is that a prospective parent who is both
conception and pregnancy
infertile, and who does not have a
relationship partner who is able to donate a gamete of their own or
carry a pregnancy to term,
is precluded from considering surrogacy as
an option in order to have a child.
[74]
Importantly, choosing to have a
child by way of surrogacy is otherwise available to a person in this
position.  The wonders
of modern medical technology mean that it
is now physically viable to have a child using surrogacy.
Before the enactment
of section 294, it was possible for a person in
the position described to choose to have a child in this way.
Alternatively,
this person could have chosen to adopt, or to not have
a child at all.  The capacity to decide is an implication of
what is
physically possible in the world – it has nothing to do
with any positive act by the state.  The state foreclosing a

reproductive option necessarily impacts upon a person’s ability
to make reproductive decisions, which is protected by
section 12(2)(a).
This, however, is distinguishable from
the state guaranteeing the realisation of this choice.  As
stated earlier, section
12(2)(a) does not protect or guarantee any
particular choice.  The effect of section 294 is to remove one
option that would
otherwise have been available.  This
axiomatically limits the affected person’s ability to make
decisions.  For
this reason, the answer to the first leg of the
section 12(2)(a) test must be “yes”.
Concerning
reproduction
[75]
Is the decision made by the affected
persons, including AB, one “concerning reproduction”?
It is alluring in this
regard to restrict matters concerning
reproduction to a person’s own physical reproductive
capacities.  To do so would
not be in line with the generous
approach to rights adopted by this Court.  A plain reading of
the word “reproduction”
suggests that it incorporates all
matters to do with the “process of producing new individuals of
the same species by some
form of generation”.
[73]
One manner in which this process could occur is by a surrogate mother
bearing a child for a single commissioning parent who
cannot donate a
gamete.  While the decision itself does not result in physical
implications for the affected person, it does
have a reproductive
outcome in the form of the conception and birth of a child.  This
is patently a reproductive act.  For
this reason, the decision
is one concerning reproduction, and the answer to the second question
must also be “yes”.
[76]
The second judgment comes to a
different interpretation.  It finds that section 12(2)(a)
protects only reproductive decisions
that have a physical effect on
the body of the person seeking to rely on the right.  It
accordingly concludes that the choice
made by a commissioning parent,
who cannot donate a gamete, to enter into a surrogate motherhood
agreement would not be protected
by section 12(2)(a), no matter the
psychological impact of the deprivation.
[74]
[77]
In reaching this conclusion, the
second judgment notes that section 11 of the interim Constitution has
been found to principally
protect each person’s physical
integrity.  It correctly observes that “[i]n
Ferreira
this Court held that this is how the guarantee of ‘freedom
(liberty) and security of the person’ is ordinarily
understood”.
[75]
But the focus in
Ferreira
was on
freedom and security of the
person
; a right now protected
explicitly by section 12(1).
Ferreira
should therefore not be used as an ill fitting interpretative
crow-bar to pry open other freedom rights.  As I have shown,

section 12(2) must be given its own meaning.
[76]
I am also unconvinced that section 12(2) “deviates”
from section 11 primarily by extending the ambit of
the entitlements
given by section 11 to “private relationships”.
[77]
Not only does section 12(1) already explicitly protect certain
acts in the private sphere,
[78]
but section 12(2) may also apply between citizen and state.
[79]
[78]
The second judgment next turns to
the application of section 12(2) in the abortion context in order to
show that the right’s
application is limited to cases where a
person is physically affected.  It points out that the harm of
preventing a woman
from choosing to terminate a pregnancy has
previously been linked to her bodily integrity.
[80]
But this case law does not say that the harm caused by precluding the
choice to have an abortion is protected
only
because it affects the body of the person making the decision.  To
the contrary, this Court’s decision in
H
makes clear that—
“
[t]oday,
having regard to the fundamental right of everyone to make decisions
concerning reproduction . . . the harm may simply
be seen as an
infringement of the right of the parents to exercise a free and
informed choice in relation to these interests.”
[81]
This is supported by
academic writing, which stresses that the impairment caused by
preventing women from having an abortion is
grounded in depriving
them of choice, and the social and personal impacts that doing so may
have.
[82]
[79]
The second judgment reasons that,
“[t]he right relating to reproductive autonomy in section
12(2)(a), confronts directly the
fact that many women do not enjoy
security in and control over their own bodies.  To that end, the
focus is on the individual
woman’s own body and not a body of
another woman”.
[83]
But the right “
to security in and
control over [one’s] body”
is
expressly protected by section 12(2)(b), rather than section
12(2)(a).  Moreover, the final draft of the Constitution
specifically
extended the ambit of section 12(1)(a) from decisions
concerning the “body” to decisions concerning
“reproduction”.
This suggests that section 12(2)(a)
was specifically geared to protecting all aspects of reproduction,
including the decision of
whether or not to have an abortion in
permissible circumstances.  Even in the context of termination
of pregnancy, section
12(2)(a) has therefore not been limited to
protecting only against physical harm.
[80]
The comparative law that the second
judgment relies on does not contradict this broader reading of
section 12(2)(a).  The Canadian,
Indian and United States
authorities referred to all identify the psychological harm of
preventing the decision in question.
[84]
None of these cases say that these decisions are protected
only
because it is the person’s physical corpus that is affected.
Moreover, as the second judgment notes, none of these
jurisdictions
have a specific, constitutionally protected right to “make
decisions concerning reproduction”.
[85]
The Canadian and Indian Constitutions – those closest to our
own – instead protect personal liberty and security
of the
person in a manner akin to our section 12(1).  The comparative
law thus does not support the interpretation that only
physical harm
to a person’s body can give rise to a violation of section
12(2)(a).
[81]
Fundamentally, the second judgment
fails to take heed of the fact that “bodily” and
“psychological” in the
right to “bodily and
psychological integrity” are two different concepts.  Yes,
one form of infringement of the
section 12(2) right may have elements
that relate to both bodily and psychological aspects.  An
example would be a medical
or scientific experiment that is not only
physically invasive, but also causes psychological trauma to the
person on whom it is
being performed.  But another act may
impugn only the psychological integrity of the affected person.
The denial of
a person who is
conception
and pregnancy
infertile the opportunity to
have a child by means of surrogacy is one example.  I see no
reason why section 12(2)(a) should
be read so restrictively as not
covering this instance as well.  I next deal more fully with
psychological integrity.
Psychological integrity
[82]
Whether the psychological integrity
of a person has been harmed is a subjective question.  The
Constitution acknowledges that
we live in a diverse society, and that
people’s mental and emotional responses may vary markedly.
Whether law or conduct
violates section 12(2)(a), on the other hand,
is an objective determination.  In deciding whether section 294
violates the
right to psychological integrity, I therefore focus on
the propensity of the impugned law to bring about psychological harm,
even
if not in all cases.
Infertility
[83]
The effect of section 294 on an
affected person’s psychological integrity must be seen within
the context of their infertility.
As previously suggested, the
effect of Chapter 19 of the Children’s Act is to regulate the
use of surrogacy.  Part of
this regulatory regime is section
295(a), which restricts the use of surrogacy arrangements to those
who are pregnancy infertile.
[86]
This shows statutory recognition for the unique difficulties
infertile people face.  Before turning to section 294
specifically, it is worth noting why this legislative sanction
exists.
[84]
As Judith Daar explains, “[t]he
emotional and psychological devastation wrought by the recognition or
diagnosis of infertility
cannot be overstated.  Numerous studies
have reported that the inability to reproduce takes a severe toll on
both men and
women.”
[87]
Many people describe infertility as “the most upsetting
experience of their lives”.
[88]
The psychological harm is especially damaging for women.  An
influential study, for instance, found that many infertile
women
suffer severe depression equivalent to terminal cancer.
[89]
The psychological trauma experienced by all infertile people is
further heightened by an abiding sense of social shame, leading
them
to conceal their infertility.  The stigma that attaches to
infertility is damaging and pervasive, especially in developing

countries like our own.
[90]
[85]
These conclusions are supported in
our own society by the expert opinion of Ms Rodrigues, a clinical
psychologist, who points to
the “societal marginalisation of
infertile people in South Africa”.  For many South
Africans who identify as male,
not having a child of one’s own
is considered a mark of failed masculinity.
[91]
This leads to these men’s social status being detrimentally
harmed: “the community did not view them as adults,
let alone
as a ‘man’.”
[92]
The same is true of South African women.  One study group
explained that women “are not allowed to wear a ‘doek’

. . . unless they have a child.  Socially, this lack of apparel
victimises infertile women and subjects them to verbal, emotional
and
physical abuse.”
[93]
In the Zulu culture, there is even a disparaging term for women who
cannot bear children: “inyumba”.
[94]
[86]
It can be inferred from this body of
work that infertility is an unenviable and psychologically harmful
condition.  It is harmful
both because it prevents people from
having children of their own, and because it results in serious
social exclusion and stigma.
Where possible, our state should
therefore look to alleviate these harmful effects.  As explained
in
S v Williams
:
“
The
Constitution has allocated to the State and its organs a role as the
protectors and guarantors of those rights to ensure that
they are
available to all.  In the process, it sets the state up as a
model for society as it endeavours to move away from
a violent past.
It is therefore reasonable to expect that the State must be foremost
in upholding those values which are
the guiding light of civilised
societies.”
[95]
This responsibility
includes the negative obligation to avoid placing additional hurdles
in the way of an infertile person’s
attempts to temper the
consequences of infertility.  Infertility is as much a social as
a physical condition.  The state
should avoid standing in the
way of decisions that people take to mitigate the socio-psychological
harm of this condition, including
reproductive decisions on how to
have a child using modern reproductive technologies.
[87]
Because infertility is experienced
differently by women and men, and because social stigma plays a role
in determining the psychological
effects it has, infertility may be a
phenomenon independent of bearing children.  The psychological
harm of infertility is
to some extent
derived
from the infertility itself
, rather
than the inability to bear a child.  As Katherine Pratt
explains, “[i]t is not the child that is the loss .
. . the
infertility is the loss”.
[96]
Understood in this manner, infertility affects the psychological
integrity of a person by placing them in a socially precarious

situation.  Being able to choose to have a child is almost
universally accepted as central to “identity and meaning
in
life”.
[97]
Stripping a person of this choice has far-reaching personal and
social ramifications.  Infertility is thus harmful partly

because it removes the ability to elect to have a child; a decision
almost universally considered important.
[88]
This conclusion is supported by a
substantial body of academic work that shows the psychological harms
associated with infertility.
It shows that “the nature of
the suffering [brought about by infertility] is often wrapped up in
(relational) notions of
personal identity (regarding personal
expectations and social roles), forming special relationships,
pursuing valued life projects
and so on”.
[98]
The ensuing feeling of disempowerment permeates the person’s
everyday affairs, negatively affecting their psychological
wellbeing.
[89]
Infertility therefore has the
capacity to detrimentally affect the psychological integrity and
wellbeing of a person at least partly
because it restricts their
ability to make reproductive decisions, within the context of strong
social expectations.  In my
view, much of the harm infertility
brings has to do with the forced deprivation of choice in an area of
life that humans consider
particularly significant.  Infertility
cruelly dispossesses a person of the capacity to decide whether or
not to have a child;
where making this decision has extensive social
implications.
Section 294
[90]
It is against this backdrop that the
effect of section 294 should be understood.  Surrogacy
meaningfully contributes to ameliorating
the harms of infertility
because it provides a pathway through which infertile people can
exercise their right to make reproductive
decisions.  Those who
use surrogacy are able to elect to join the ranks of parenthood.
The great benefit of surrogacy
is that it opens reproductive avenues
for those who would otherwise be unable to have children of their
own.  Surrogacy
itself
allows the infertile to ameliorate the psychological harms of
infertility.
[91]
Regrettably, section 294 has the
opposite effect for those who are both pregnancy infertile and cannot
contribute a gamete to conception.
Chapter 19 unambiguously
recognises that because infertility puts people in a position that is
harmful to their psychological integrity,
they should be allowed to
pursue surrogacy as a means of having a child of their own.  But
section 294 prevents a segment
of this same Class of people from
accessing surrogacy to their psychological detriment.  Moreover,
these psychological hurts
are visited on a group who are especially
affected by their infertility because they are not only pregnancy
infertile, but are
also conception infertile.
[99]
As the facts in this case cogently illustrate, this group’s
ability to make reproductive decisions are already significantly

restricted.  Section 294 imposes and compounds
psychological harm for a vulnerable constituency.  It does so by

limiting their ability to make reproductive decisions.  This
limitation is a violation of section 12(2)(a).
[92]
It must be stressed that it is not
the
inherent
harm of infertility that triggers section 12(2)(a).
Instead, it is the
impact
section 294 has on the psychological integrity of conception and
pregnancy infertile people that limits the right.  Section 294

prevents a conception and pregnancy infertile person from moderating
the harmful consequences of their infertility by using surrogacy
to
have a child of their own.
[93]
Accordingly, I disagree with the
second judgment’s conclusion that “
[w]hat
disqualifies AB, and others similarly placed, is nothing but the
biological, medical or other reasons as contemplated in
section
294”
.
[100]
Section 294 creates a
legal
barrier between a conception and pregnancy infertile person and the
use of surrogacy.  While psychological harm is caused
by the
person’s infertility, it is the legal barrier blocking access
to surrogacy for conception and pregnancy infertile
persons that
brings about the harm that triggers section 12(2)(a).  Section
294 takes the option of surrogacy away, and thus
becomes the cause of
continuing psychological trauma: if the provision did not exist, then
a conception and pregnancy infertile
person could choose to use
surrogacy in order to have a child.
[94]
On the one hand, being conception
and pregnancy infertile is in itself psychologically harmful.
But a person’s rights are not violated by
virtue of their infertility.  On the other hand, where a law
results in detrimental
consequences for a person’s
psychological integrity by preventing them from making a decision
concerning reproduction, it
constitutes a violation of
section 12(2)(a).  It is because section 294 has the latter
effect – it precludes the
making of a reproductive decision –
that it constitutes a rights infringement.
[95]
The second judgment takes a
different view.
It holds that it is
the “personal choice” of a single, conception and
pregnancy infertile person like AB that precludes
them from using
surrogacy.
[101]
It explains:
“
In
the case where the commissioning parent is single, the impugned
provision provides for that parent, where a gamete of that parent
can
be used in the creation of the child.  But if that parent cannot
contribute a gamete, the parent still has available options
as
afforded by the law:  A single parent has the choice to enter
into a permanent relationship with a fertile parent, thereby

qualifying the parent for surrogacy.
If
the infertile commissioning parents, or parent, decide not to use the
available legal options, they have to live with the choices
they
made.”
[102]
[96]
In sum, the second judgment argues
that if a single, conception and pregnancy infertile person wishes to
have a child, they are
obliged to enter into a permanent relationship
with a fertile person who is willing to contribute a gamete to the
conception of
a child by way of surrogacy.  I cannot endorse
this argument.  In
Fourie
,
this Court noted that “South Africa has a multitude of family
formations that are evolving rapidly as our society develops,
so that
it is inappropriate to entrench any particular form as the only
socially and legally acceptable one”.
[103]
A prejudicial law cannot be defended on the basis that other forms of
family life are open to an affected person.  The
decision to be
single, or to follow any other relationship path, is deeply
personal.  It is not appropriate for courts to
interfere in this
decision making process.  Consequently, it cannot be argued that
section 294 does not lead to psychological
harm because an infertile
person can hypothetically find a life partner.
[97]
For all of these reasons, I conclude
that section 294 objectively limits the right to psychological
integrity by preventing AB and
others from making decisions
concerning reproduction in terms of section 12(2)(a) of the
Constitution.  A generous, contextual
and purposive reading of
the right necessitates this conclusion.  In my view, this is the
pivotal and fundamental right that
section 294 violates.  In the
sections that follow, I assess to what extent the effect section 294
has on the right to equality
augments the reasoning underlying this
conclusion.
Equality
[98]
The equality challenge is
two-pronged.  First, the applicants argue that section 294
differentiates between persons who
are capable of contributing a
gamete to the conception of a child, and those who are not.
[104]
This is differentiation on the basis of conception infertility.
Second, the applicants argue that section 294 differentiates
between
persons who are unable to contribute a gamete to the conception of a
child and intend to use IVF, and those who are unable
to contribute a
gamete to the conception of a child and intend to use a surrogacy
arrangement.
[105]
This, they claim, is differentiation on the basis of pregnancy
infertility.
[99]
The Minister rightly concedes that
both of these scenarios amount to differential treatment.  The
differentiation in the first
case stems from section 294 requiring
the use of a gamete from at least one commissioning parent in the
conception of a child by
way of surrogacy.  Therefore, those who
are able to contribute a gamete are permitted to conceive a child
using a surrogacy
agreement, while those who cannot, may not.
This, in fact, is the intended effect of the provision.
[100]
In the second case, the
differentiation stems from contrasting approaches in two sets of
laws.  Where a person or persons wishes
to use IVF treatment in
order to have a child, section 68(1)(k) of the National Health Act
allows the Minister of Health to make
regulations “regarding
the bringing together outside the human body of male and female
gametes”.  The Regulations
Relating to Artificial
Fertilisation of Persons, published in March 2012 (and updated in
September 2016), now regulate the use
of IVF in the conception of a
child (IVF regulations).
[106]
In terms of these regulations, the recipient of IVF treatment is not
prevented from using both male and female donor gametes
of their
choice.
[101]
Section 294 of the Children’s
Act, on the other hand, requires that at least one of the gametes
used in the conception of
a child by way of surrogacy belong to a
commissioning parent.  Section 294 therefore prohibits the use
of both male and female
donor gametes of the commissioning parent or
parents’ choice in the conception process.  The IVF regime
does not require
that the parent or parents of a child to be
conceived through IVF donate a gamete, while the surrogacy regime
does.
This amounts to differential
treatment.
[102]
In
Harksen
,
this Court adopted a multistage process for determining if law or
conduct violates the right to equality.
[107]
Establishing whether the impugned law or conduct differentiates
between people or categories of people is the first stage
of that
process.  If differentiation is established, it must next be
determined whether the differentiation bears a rational
connection to
a legitimate government purpose.
[108]
Rational connection
[103]
If law or conduct does not bear a
rational connection to a legitimate government purpose, then it
violates section 9(1) of the Constitution.
The High Court found
that the second differentiation does not reach this threshold, and
that section 294 therefore violates
the right to equality.
[109]
[104]
I am unpersuaded by this reasoning.
As explained in
Weare
,
“[t]he question is not whether the government could have
achieved its purpose in a manner the court feels is better or more

effective or more closely connected to that purpose.  The
question is whether the means the government chose are rationally

connected to the purpose, as opposed to being arbitrary or
capricious”.
[110]
As more fully discussed below, the purpose of section 294 is
principally to ensure that the best interests of the child to
be born
are safeguarded.  In the case of surrogacy arrangements, the
commissioning parent does not carry the child.
This is
significantly different to cases where conception is realised through
IVF treatment of one of the commissioning parents.
That is
reason enough to conclude that the differentiation is not arbitrary
or capricious.  Section 294 is therefore not constitutionally

invalid on the basis of section 9(1).
Discrimination
[105]
If section 9(1) has not been
violated, the next stage of the
Harksen
test is to determine if the differentiation amounts to
discrimination.  If the differentiation is on a ground listed in
section
9(3), it is necessarily discriminatory.  In oral
argument, counsel for the Surrogacy Group conceded that there was no
differentiation
on a listed ground.  I proceed on the assumption
that this is correct.  It must therefore be determined whether
there
is discrimination on an unlisted ground.  The Court in
Harksen
found that, “[t]here will be discrimination on an unspecified
ground if it 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”.
[111]
In the same decision, Goldstone J “caution[ed] against any
narrow definition” of discrimination.
[112]
Determining whether there has been discrimination is an objective
question, independent of the intentions of the Legislature.
[113]
[106]
The unlisted ground that underpins
the alleged discrimination in the case of the first differentiation
is conception infertility.
It must therefore be determined if
differentiation on the basis of conception infertility has the
capacity to impair the fundamental
dignity of those who are both
conception and pregnancy infertile, or adversely affect them in a
comparably serious manner.
In my view, the essential components
necessary to come to the conclusion that it does are to be found in
the violation of section
12(2)(a) already established.  Those
who are pregnancy infertile, but not conception infertile, can use
surrogacy to ameliorate
the psychological harms of infertility.
By contrast, those who are both conception and pregnancy infertile
cannot.
This raises the differentiation to the level of
discrimination.
[107]
The harm to psychological integrity
that infertility brings, and which results in discriminatory
treatment, is buttressed by our
dignity jurisprudence.  The
section which follows illustrates in more detail the effect section
294 has on the dignity of
those negatively affected by it.
Dignity
[108]
The Constitution’s
understanding of dignity is rooted in our past.  Specifically,
it is rooted in a recognition that
indifference to the concerns of
other members of society leads to “
a
culture of retaliation and vengeance”.
[114]
Thus, our Constitution acknowledges that protecting and promoting
diversity of thought and action is a requirement for human

flourishing, and for community building.  It is only by
accepting that the opinions and decisions of each individual should

be respected and encouraged that dignity is ensured.  The right
to dignity “requires us to acknowledge the value and
worth of
all individuals in a society”.
[115]
[109]
This is particularly true in the
context of decisions concerning reproduction.  As Michelle
O’Sullivan explains, “[t]he
history of reproductive
rights in South Africa is a history of pervasive, highly invasive
regulation”.
[116]
Marriage law subjected women to the will of their husbands, relegated
them to the status of perpetual minors, and limited
their capacity to
make reproductive decisions.  Only in 1993 were women considered
capable of being legal guardians of their
own children, including for
the purposes of planning parenthood.  Abortion was criminalised,
and those who attempted to use
it were hounded and victimised.
In addition, racist population control policies sought to control the
fertility of black
people, including through the use of injectable
contraceptives.
[117]
[110]
Section 294 strips Classes of
persons, including those who are both conception and pregnancy
infertile, of the power to choose to
have a child using available
reproductive technology.  The removal of this choice both limits
the ability of those persons
to construct their reproductive lives in
a manner that adheres to their own “conscience and
convictions”, and prevents
society from enjoying what may be a
beneficial new form of family life.
[118]
While section 294 remains in force, we cannot explore the benefits of
this kind of kinship.  Instead, section 294 pushes
those in AB’s
position to the margins of society.
Biology
[111]
Section 294
is
targeted at prospective parents who are unable to contribute a gamete
to a surrogacy arrangement.  It is because of a biological

condition, and the suspected consequences thereof, that section 294
exists.  If AB were able to contribute a gamete, she could
have
a child by way of surrogacy.  Because she is biologically unable
to do so, she is prevented from entering into a surrogacy
agreement.
[112]
The provision pays scant regard to
whether the prospective parent or parents can perform their parental
role effectively.
Instead, it assumes that the biological fact
of lacking a “genetic link”
necessarily
means that a person should no longer be entitled to decide when it is
appropriate for them to have a child.
[119]
Notably in this respect, the Minister provides no empirical
justification for this drastic conclusion.  The effect of

section 294 is to assume, without the support of evidence, that
the state is in a better position to make reproductive decisions
than
the parent who will raise her.
[120]
This is a flagrant violation of dignity, especially where the
consequences are an increase in stigma, and an endorsement
of
homogeneity over difference.
[121]
Technology
[113]
Section 294 also has the effect of
ignoring the impact of new technologies on the ambit of rights.
In the context of HIV,
this Court’s decision in
TAC
shows that where innovations in technology, like the advent of
nevirapine, mean that harm can be mitigated, the state has an
obligation
to avoid rigidly disregarding these advances.
[122]
There is an even stronger argument here.  In this case, no
positive act is asked of the state, and so questions of
“reasonableness” in the context of socio-economic rights
do not arise.  Instead, the state has the lesser, negative
duty
to avoid standing in the way of advances in technology that can
radically alter peoples’ lives for the better.
The
invention of IVF and IVF-based surrogacy over the last 50 years is a
marvel of modern medicine.  The effects have been
drastically
beneficial for a range of people including gay men, single persons,
and the infertile, who could not previously have
children of their
own.  For the law, advances in technology have meant that the
protection of rights associated with reproduction
has been extended
beyond its previous range.
[114]
The same rights should, therefore,
be accorded to those who are both conception and pregnancy
infertile.  Modern technology
has made it possible for them to
be involved in the conception process by opting to use surrogacy, and
choosing donor gametes.
This is not a capacity that is granted
by the state.  Instead, it is a fact.  Where previously
those who are both
conception and pregnancy infertile could not have
children except by adoption, technological advancements now make
surrogacy a
viable option.  The effect of section 294 is to take
away the right to make this reproductive decision.  This it
cannot
do on the basis of luddite reasoning.  The ambit of
rights protected by the Constitution must take into consideration
developments
in technology, even more so where the state has endorsed
the technological development.
Family
[115]
Just as changes in technology alter
the ambit of rights, so too do changes in our social structure.
As the Surrogacy Group
rightly points out, how we conceptualise the
family is one of these social phenomena.  In
Du
Toit
, the Court concluded that “family
life as contemplated by the Constitution can be provided in different
ways and the legal
conception of the family and what constitutes a
family should change as social practices and traditions
change”.
[123]
Consequently, the kinds of family life that are constitutionally
protected can alter over time.
[116]
The second judgment takes the view
that “this case is about the validity of section 294 of
the Children’s Act and
not about whether the genetic link
requirement in that section has relevance to the legal conception of
the family”.
[124]
I do not see how these two questions can be separated.
Determining whether section 294 passes constitutional muster
requires
that we ask whether the section violates constitutional rights,
including the prohibition of unfair discrimination.
As
Fourie
makes perspicuous, preventing the legal entrenchment of one form of
family life over another is an “unambiguous feature”
of
“the prohibition against unfair discrimination”.
[125]
Therefore, establishing to what extent one kind of family life is
privileged over another contributes to determining whether
section
294 is constitutionally valid.
[117]
The Constitution values alternative
forms of family life for good reason.  Because of the diversity
that characterises our
society, there is no one correct version of
the family against which others can be assessed.  Therefore, it
would be presumptuous
and arbitrary to define what an acceptable
family entails.  In a legal culture based on justification,
capricious restrictions
on something as important to human beings as
the family cannot be countenanced.  This will harm the dignity
of those directly
affected, as well as our society in general.
[118]
Moreover, by requiring the existence
of a “genetic link” between parent and child, section 294
is problematically disparaging
of forms of family life that have
already been constitutionally sanctioned, including adoption.
Children who are adopted
necessarily have no genetic or gestational
link with their parents.  To suggest that adopted children are
inevitably worse
off for this fact is to contradict this Court’s
clear indication that families with adopted children should not be
thought
of or treated differently to other families.
[119]
That adopted children have already
been born does not change this fact.  It is constitutionally
impermissible to say that families
with children who are not
genetically connected to their parents are significantly worse off.
The Constitution instead celebrates
this difference, and recognises
that the diversity of our society is what makes it robust.
Section 294 therefore not only
affects the dignity of prospective
parents, but also of families with adopted children, and our society
as a whole.
IVF
[120]
The second differentiation further
demeans the dignity of the conception and pregnancy infertile by
compelling them to accept that
the law does not deem it necessary to
police the implications of the choices of people who elect to use
IVF, but does where surrogacy
is employed.  Users of IVF can
decide to utilise two anonymous donor gametes.  By contrast,
those who choose to use surrogacy
because they are pregnancy
infertile, and therefore necessarily cannot use IVF to fall pregnant,
are prevented from doing the same.
[121]
The only variance between users of
IVF and users of surrogacy is that in the former case, one of the
parents carries the child.
The second judgment puts much store
in this difference.
[126]
It endorses the view that “[t]he gestational link is considered
emotionally significant as it allows the woman to feel
that the child
is ‘hers’ and that she is a ‘normal’ mother
who conceived ‘naturally’.”
[127]
Again, this language problematically entrenches certain “normal”
kinds of family life and in particular has a
negative connotation for
families with adopted children.  The implication is that the
mother of an adopted child should not
feel that she is a “normal”
mother.
[122]
In addition, there is a complete
absence of evidence in front of us to show that a
gestational
link between parent and child is in any way valuable in and of
itself.  In fact, neither the Minister nor the Centre make
this
argument.  At most, both parties instead contend that section
294 is valuable because it ensures that at least one commissioning

parent is
genetically
linked to a child born of surrogacy.  This is the purpose
endorsed by the second judgment.
[128]
But if the purpose of section 294 is to ensure a genetic link between
parent and child, then whether there is a gestational
link or not is
immaterial.  If all children
must
have a genetic link to at least one of their parents in order to have
a worthwhile life, then this logic must apply in both the
IVF and
surrogacy contexts: it is discriminatory to require a genetic link in
only one of these cases.
[129]
[123]
Because of this, it can only be
concluded that the differentiation is harmful to the affected
person’s dignity.  Potential
users of surrogacy must live
with the indignity of knowing that the law gives extra entitlements
to those who are not pregnancy
infertile, and therefore can use IVF,
for no discernible reason supported by argument or evidence.  As
pointed out in
Larbi-Odam
,
differentiation with negative effects is likely to be discrimination
where the basis is a “personal attribute that is difficult
to
change”.
[130]
In the context of our past where discrimination based on physical
characteristics has been wide-spread, we must be especially
careful
to avoid condoning the use of physical differences as the basis for
differentiation, particularly where the differentiation
results in
harmful consequences.
[124]
For all of these reasons, section
294 harms the dignity of those who are both conception and pregnancy
infertile.  It fails
to consider all people as worthy of our
mutual concern and respect.  By doing so, it impoverishes our
polity, and diminishes
the gains we have taken from our past.
There are important emotional, social and historical reasons, rightly
recognised by
law, for allowing both conception and pregnancy
infertile persons the option to use surrogacy.
[131]
These reasons are tightly wound up with the psychological wellbeing
of those who rely on surrogacy to have a child of their
own.
Unfairness
[125]
In order to violate section 9(3),
the challenged law or conduct must also discriminate unfairly.
[132]
Unfairness is determined by focussing on the impact of the
discrimination on the complainant and others in his or her
situation.
[133]
[126]
In
Van
Heerden
, Moseneke J found that “[i]n
the assessment of fairness or otherwise a flexible but ‘situation
sensitive’ approach
is indispensable because of shifting
patterns of hurtful discrimination and stereotypical response in our
evolving democratic society”.
[134]
As previously shown, while the use of surrogacy to have children is
an ancient phenomenon, modern reproductive technologies
have only
recently enabled it to occur in the manner now governed by Chapter
19.  We should thus be careful to adopt a “situation

sensitive” approach that prevents the creeping influence of
small-minded prejudice.  AB could not have imagined having
a
child through surrogacy 50 years ago.  As the social
implications of this changing landscape are made manifest over time,

our duty under a transformative Constitution is to make sure that the
wellbeing of as many people as possible is enhanced through
the Bill
of Rights.
[127]
The impact of both the first and
second differentiations on those who are both conception and
pregnancy
infertile is manifest: they
cannot choose to have a child using surrogacy.  This is exactly
the effect that section 294
seeks to achieve.  By doing so,
it compels those who are both conception and pregnancy
infertile, and who wish to become a parent, to
adopt.  Assuming for present purposes that adoption and
surrogacy are not comparable
processes,
[135]
the effect of this law is unfair; it prevents a vulnerable group of
people from utilising modern technology to have a child of
their own,
in the manner that they have chosen, for reasons that they
appreciate.  Against the backdrop of the fundamental
breach of
the right to psychological integrity, section 294 therefore
discriminates unfairly against those who are both conception
and
pregnancy infertile, and consequently violates the right to equality.
Further rights
[128]
The Surrogacy Group argues that the
rights to privacy and access to reproductive healthcare are also
infringed by section 294.
As I have found that section 294
infringes other rights, judicial economy renders it unnecessary for
me to deal with these arguments.
Limitations analysis
[129]
Having concluded that section 294 of
the Children’s Act limits the rights to psychological
integrity, as well as equality,
it falls to be determined whether the
limitation is justifiable in terms of section 36(1) of the
Constitution.
[136]
[130]
The question is therefore whether,
in an open and democratic society based on human dignity, equality
and freedom, section 294 reasonably
and justifiably limits the rights
violated.  The onus is on the Minister to show that the
limitation is justified.  This
involves determining whether the
justification offered by the Minister for the rights violation is
proportionate to the extent
of the violation.  In answering this
question, the Constitution enjoins us to take into account the
factors set out in section 36(1).
Each of these factors is
considered below.
The nature of the rights
[131]
The substantive nature of the
individual rights violated has been canvassed in the section above.
Each violation is a serious
infraction that impacts negatively on the
lives of those affected.  In addition, the harmful effect of the
individual violations
is made acute by their interdependence.
[137]
When considering whether the limitation of these rights is
justifiable, it is the nature of the rights as a totality that
is
considered, with emphasis on the impairment caused by individual
rights violations where appropriate.
[132]
For the purposes of conducting a
limitation analysis, the nature of the rights infringed also gives
substance to the terms “human
dignity”, “equality”
and “freedom”.  In establishing the meaning of these
terms, section 36(1)
requires that we determine what is reasonable
and justifiable “in an open and democratic society”.
This leaves scope to examine the way
in which foreign jurisdictions regulate surrogacy.  What other
open and democratic societies
consider appropriate can be of
assistance in determining what is reasonable and justifiable in our
own.
[133]
How surrogacy should be regulated is
a disputed issue globally.  Responses range from, on the one
hand, a complete ban on all
forms of surrogacy, whether altruistic or
commercial – as is done in Switzerland
[138]
and most European Union Member States,
[139]
– to a highly permissive regulatory environment allowing for
surrogacy in most forms, including for commercial gain –
as is
done in parts of the United States
[140]
and Russia,
[141]
as well as in Georgia – on the other.
[142]
[134]
Chapter 19 of the Children’s
Act falls between these two extreme ends of the spectrum.  While
commercial surrogacy is
prohibited in South Africa, altruistic
surrogacy is conditionally permitted.
Democracies
that have similar positions in this regard include the United
Kingdom,
[143]
as well as most states in Australia
[144]
and most provinces in Canada,
[145]
all of which permit some form of altruistic surrogacy.
[135]
These three countries take disparate
approaches to the question whether double-donor surrogacy
[146]
should be permitted.  In the United Kingdom, single persons are
prevented entirely from becoming a parent of a child born
of a
surrogacy agreement.
[147]
Moreover, at least one of the two commissioning parents must
contribute a gamete for the purposes of conception.
[148]
On the other hand, most states in Australia, and most provinces in
Canada,
[149]
do not require that an intended parent or parents contribute a gamete
or gametes in order to enter into a surrogacy arrangement.
[136]
Unlike the United Kingdom and
Australia, Canada’s Charter of Rights and Freedoms includes a
comparable right against unfair
discrimination to our own
section 9(3).  The position in Canada accordingly seems of
greater comparative assistance than
the position in Australia, which
has no Bill of Rights, or the United Kingdom, which has no formal
constitution.  Unlike in
South Africa, Canadian federal law does
not require a person to contribute his or her own gamete for the
purposes of surrogacy.
This despite the Canadian Charter not
having a comparable provision to our own section 12(2)(a).
[137]
While there are thus a variety of
regulatory responses to the question of whether double-donor
surrogacy is permissible, there is
no helpfully comparable open and
democratic society with a provision similar to section 294.  In
addition, South Africa has
adopted a unique constitutional approach
to non-discrimination and the protection of psychological integrity.
In determining
whether section 294 is reasonable and justifiable, we
must accordingly give weight to this singular approach.
The
importance of the purpose of the limitation
[138]
In order to establish the importance
of the purpose of the limitation, it must first be established what
the purpose itself is.
In this case, doing so equates to
understanding the purpose of section 294.
The purpose of section
294
[139]
It is by now trite that “statutory
provisions should always be interpreted purposively” and that
“the relevant
statutory provision must be properly
contextualised”.
[150]
Accordingly, I interpret the meaning of section 294 against the
background of Chapter 19, the Children’s Act as a whole,
and
other relevant legislative and contextual considerations.
[140]
This Court has often used the long
title and preamble to contextualise particular provisions of an
Act.
[151]
In this case, the Children’s Act’s long title
indicates that it was enacted, amongst other reasons, to “
provide
for
surrogate motherhood”.
[152]
[141]
This indicates that the Children’s
Act endorses the use of surrogacy as a means of reproduction.
However, it does so
within the broader context of an Act whose
primary purpose is the promotion and protection of children’s
rights.  Therefore
surrogacy is permitted in South Africa, but
regulated with the best interests of children in mind.
[142]
Notably, surrogacy itself is not
“provide[d] for” in order to promote the best interests
of children.  As the
Ad hoc
Committee explained in its report, surrogacy provides “a
legitimate alternative for irreversibly infertile persons who wish
to
have children”.  Chapter 19, on the other hand, was passed
to ensure that surrogacy is practiced in a manner that
considers
primarily the wellbeing of children who may be born of surrogate
motherhood agreements.
[143]
This said, although Chapter 19
broadly accepts surrogacy as a legitimate reproductive avenue, it
does not make surrogate motherhood
agreements available to everyone.
Instead, surrogacy is only available to persons who are pregnancy
infertile; that is, to
those who are permanently and irreversibly
unable to give birth to a child.  This is an indication that
Chapter 19 recognises
that surrogacy enables pregnancy infertile
people to choose to have a child of their own outside of the adoption
process.
[144]
What is the purpose of section 294
within this context?  The Minister contended before the High
Court and this Court that section
294 has several separate but
overlapping goals, which can be reduced to the following four
purposes:
(a)
The prevention and deterrence of the practice of commercial
surrogacy;
(b)
The prevention of the creation of “designer children”,
which would not be in
the public interest;
(c)
The promotion of the best interests of the child to be born insofar
as she has the right
to know her genetic origins; and
(d)
The prevention of the circumvention of existing adoption processes,
through the creation
of commissioned children for “adoption”.
In order to determine the
purpose of section 294, I consider each of these ostensible purposes
below.
Commercial
surrogacy
[145]
As explained in the
Ad
hoc
Committee report, commercial
surrogacy—
“
means
a surrogate arrangement where the surrogate mother is motivated by
the prospect of financial gain as the surrogacy is undertaken
in
exchange for payment.  The commissioning parent or parents
undertake to pay the surrogate mother a fee which is greater
than the
costs incurred and income lost in conceiving and bearing the child.”
[146]
It is difficult to understand how
the absence of section 294 would encourage commercial surrogacy.
Commercial surrogacy, as
already mentioned, is specifically
prohibited and its practice attracts heavy criminal sanction.
[153]
Counsel for the Minister correctly conceded at the hearing that
section 294 does not in any way ensure the non­proliferation
of
commercial surrogacy in a manner that the provisions already in place
for that purpose do not.
[147]
With or without the inclusion of
section 294, the Children’s Act has stringent provisions in
place to ensure that surrogate
motherhood agreements are concluded
strictly on an altruistic basis.  Simply put, the removal of
section 294 from the Children’s
Act makes no difference to the
proliferation of commercial surrogacy as a practice.  No
evidence has been placed before us
that suggests otherwise.  The
purpose of preventing commercial surrogacy is achieved through other
sections in Chapter 19,
not through section 294.  The Minister’s
argument that one of the purposes of section 294 is to prevent
the propagation
of commercial surrogacy must accordingly be rejected.
[148]
This does not mean that measures
aimed at the prevention and non-proliferation of commercial surrogacy
constitute an illegitimate
use of Legislative power.  It simply
means that nothing has been placed before this Court to show that
section 294, specifically,
is aimed at curbing commercial surrogacy.
“
Designer
children”
[149]
Without a fairly precise explanation
of what is intended by it, the term “designer children”
is, at best, confounding.
The Minister’s only real
attempt to define the term is through the expert evidence tendered by
Professor Donna Knapp van
Bogaert, who defines the term “designer
baby” as—
“
a
baby whose physical [characteristics] are chosen in advance of their
implantation by commissioning parents.  The motivation
for
[this] choice is unrelated to health matters; it is a cosmetic choice
as opposed to a choice arising from a medical need.”
Aside from claiming
that “designer babies” are those chosen for cosmetic
reasons, this definition is unhelpful.
Is the term limited only
to children who are conceived using two donor gametes?  Or does
it include scenarios where one gamete
is used from a commissioning
parent and another from a donor?  Is a child born of the latter
type of arrangement also a “designer
child”?
[150]
This Court is not well placed to
define the term in the absence of clear expert evidence.  In any
event, on Professor van Bogaert’s
own account, it is unclear
whether the term is predicated on sound scientific principles.
She makes reference to the work
of Professor Alan Handyside, who she
describes as “one of the pioneers in [the field of] IVF”.
[151]
Professor Handyside insists that the
term has no scientific merit whatsoever.  He opines that it
would be very difficult, if
not impossible, to “cherry­pick
a desired combination of traits” because of, amongst other
reasons, the approximately
eight million possible genetic
combinations available in one embryo.  As the Surrogacy Group
correctly points out, Professor
van Bogaert makes no attempt to
refute Professor Handyside’s assertions.
[152]
It bears repetition that the double
donation of gametes in the case of IVF not involving surrogacy is
legally permissible.
Here, too, the parent or parents are at
liberty to make whatever selection of gametes they like.  In
this sense, the ability
to pick and choose is similar to what the
Minister says section 294 seeks to prevent in the case of conception
and pregnancy infertile
parents.  It makes no sense that the
ability to choose as one pleases should be acceptable in the one
instance, but not in
the other.  If some fundamental problem
inheres purely in being able to choose gametes, that should be the
case across the
board.  Relatedly, even where one gamete is from
one of the parents and the other donated, there is still an exercise
of choice
with regard to the donated gamete and, therefore, an
element of “designing”, whatever that may mean.
Does that
make the “designing” in this instance
acceptable?  If so, why?  I cannot think of any cogent
reasons that
justify these distinctions.  And none have been
given.  Alleging that the purpose of section 294 is aimed at
preventing
the creation of “designer children” is, it
seems to me, contrived.
The
“right” to know one’s origin
[153]
The heading of section 294, as the
Centre correctly points out, is a clear indication that the provision
is aimed at regulating
the genetic origin of children born pursuant
to surrogate motherhood agreements in order to ensure that their best
interests are
promoted.  The Centre concludes that the reason
for this is that children are entitled to
know
their genetic origin.  The second judgment endorses this
interpretation of the section’s purpose.  It holds that

there is a “need for a genetic link between a child and at
least one parent”, as “clarity regarding the origin
of a
child is important to the self-identity and self-respect of the
child”.
[154]
The judgment concludes that the possible harm to self-identity and
self-respect brought about by a child not knowing the
identity of
either of their genetic parents “is, unquestionably, all
important”.
[155]
[154]
Section 294, so the argument goes,
ensures that any child born of a surrogacy arrangement knows their
genetic origin.  The
provision is necessary in light of
section 41 of the Children’s Act:
“
(1)
A child born as a result of artificial fertilisation or surrogacy or
the guardian of such child
is entitled to have access to—
(a)
any medical information concerning that
child’s genetic parents; and
(b)
any other information concerning that
child’s genetic parents but not before the child reaches the
age of 18.
(2)
Information disclosed in terms of subsection (1) may not reveal the
identity of the
person whose gamete was or gametes were used for such
artificial fertilisation or the identity of the surrogate mother.”
[155]
The effect of section 41 on
children born as a result of surrogate motherhood agreements is that
they are, as of birth, barred
by law from finding out the identity of
any gamete donor who contributed to their conception.  A child
is entitled to medical
and other information about the donor in terms
of section 41(1), but that person’s identity may not be
revealed in terms
of section 41(2).  The Centre contends
that it is for this reason that section 294 was enacted.
The purpose
of section 294, the Centre insists, is to ensure
that children born of surrogate motherhood agreements will be able to
know
the
identity of one of their genetic parents, or, ideally, both.
[156]
At first blush, the Centre’s
argument, endorsed by the second judgment, appears to be consistent
with the hierarchy created
by section 294.  In the event that
there are two commissioning parents, the provision envisions the use
of the gametes of
both
commissioning parents.  If this scenario ensues, the prospective
child’s genetic parents will be the commissioning parents

themselves, and there will be no bar to that child knowing her full
genetic origins, provided that her parents disclose the requisite

information to her.
[157]
Only “if that is not possible
due to biological, medical or other valid reasons” may one of
the two commissioning parents’
gametes be used.
Similarly, in the event that there is only one commissioning parent,
the gamete of that person must be used.
In sum, the purpose of
section 294, on the Centre’s argument, is to ensure that
children born of surrogacy must be able to
know their genetic origin
either in respect of: (1) both their genetic parents; (2) one of
their genetic parents in the event that
the other commissioning
parent cannot donate a gamete for valid reasons; or (3) at least one
of their genetic parents in the event
of their having a single
commissioning parent.
[158]
If we accept that a child has the
right to know her genetic origins, and that, as the Centre contends,
it would always be in the
best interests of a child to know her
genetic origins – including the identity of her genetic parents
– then it must
follow that the constitutionality of section
41(2) is brought into question.  This is because section 41(2)
explicitly
prevents a category of children from discovering the
identity of gamete donors who are their genetic parents.  If we
accept
the Centre’s line of reasoning, a logical corollary of
this argument would be, had the Legislature not enacted section
41(2),
all children born of surrogacy arrangements would be able to
know their genetic origin.
[159]
It is trite that, where possible,
different provisions in a single Act should be read as consistent
with one another.
[156]
Claiming that section 41(2) deliberately
prevents
a category of children from knowing their genetic origin, while
simultaneously claiming that the purpose of section 294 is to ensure

that a portion of this category
do
know their genetic origin, is contradictory.
[160]
If the Legislature thought that the
right to know one’s genetic origins was in the best interest of
children in every case,
then it is unlikely that section 41(2) would
have been enacted in its present form.  This is because the best
interest of
the child standard applies to all matters involving a
child.  It would be paradoxical for the Legislature to promote
other
interests, like donor anonymity, above knowing one’s
genetic origins in section 41, but then include a provision in the
same
Act whose purpose is to ensure knowledge of one’s genetic
origins in order to protect the best interests of the child.
[161]
This is particularly so if one has
regard to the wording of section 41(2).  It contemplates a
situation where a child is born
of two donated gametes.  If this
were not the case, section 41(2) would not keep secret the “identity
of the person
whose gamete was
or
gametes were
used”.
[157]
The provision quite perspicuously envisages a scenario where a child
is born of two donated gametes.  An implication
of this is that
the Children’s Act – whether validly or not –
allows for the possibility that children may be
born without any
knowledge of who their genetic parents are.
[162]
The IVF regulations are consistent
with this understanding.  It is quite clear from my reading of
section 41(2) that the Minister
of Health’s enactment of those
regulations was permissible in terms of the Children’s Act, and
consistent with it.
The only manner in which a challenge to the
validity of the IVF regulations could succeed, in my view, is if a
constitutional challenge
is levelled directly at section 41(2).
In the absence of this challenge, however, the IVF regulations are
perfectly valid
in terms of the Children’s Act.
[163]
In light of section 41(2), then, I
struggle to see how the purpose of section 294 is to ensure that
children born of surrogacy may
know their genetic origin.  If
this were the purpose of section 294, it would amount to a situation
where the Children’s Act
allows a particular purpose to be
pursued in a manner which is not even-handed.  In other words,
it would allow for
some
children – those born of surrogacy – to know, partially
or fully, their genetic origins.  But it would simultaneously

result in a situation where other children – those born of
double-donor IVF – are completely barred from knowing theirs.

It follows that section 41(2) and section 294 are contradictory,
rather than complimentary.
[164]
This is a problem for two reasons:
(a)
It suggests that there are two different best interests of the child
standards, one for
children born of surrogacy, and another for
children born of double-donor IVF.  This is impermissible and
inconsistent with
a plain understanding of the phrase “best
interests”.
(b)
Second, it suggests that genetic origins matter less if one is born
of double-donor IVF,
presumably because there is a
gestational
link between mother and child even if there is no genetic tie.
While a gestational link may be of importance in some instances,
it
has no bearing on
genetic
identity.
[165]
A more convincing and consistent
explanation of why section 294 requires a gamete link between a
commissioning parent and child
is that provided by the
Ad
hoc
Committee report:
“
In
instances where both the male and the female gametes used in the
creation of the embryo are donor gametes, it would result in
a
situation similar 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.”
Notably, the report
does not advance any further reasons for the inclusion of a provision
requiring that there be a genetic link
between the prospective child
and the commissioning parent or parents.  The only reason it
propounds is that adoption is already
an option for prospective
parents looking to have a child that bears no genetic connection to
them.  Preparatory documents
can be misleading and are not,
without more, indicative of legislation having a particular purpose.
Nevertheless, the reasoning
contained in the report is
illuminating.
[158]
Tellingly, this is also the version endorsed by the Minister in her
written and oral submissions.
[166]
This is not to say that section 294
does not have the effect of ensuring that children born of surrogate
motherhood agreements may
know their genetic origins, albeit
partially in the event that a donor gamete is used.  However,
this, in my view, is merely
a coincidental additional effect.
To hold otherwise is to accept that different provisions of the Act –
sections 41
and 294 – were enacted for purposes that were
inconsistent with one another, contrary to the Minister’s own
view.
Surrogacy and
adoption
[167]
The Minister argues that another
purpose of section 294 is to promote adoption.  This argument
strikes me as opportunistic.
There is nothing in Chapter 15 –
the chapter that regulates adoption – or anywhere else in the
Children’s Act,
which suggests that adoption
as
a means to becoming a parent
should be
promoted over other means.  The long title of the Children’s
Act merely says that Chapter 15 is there
“to make new
provision for the adoption of children”.  I find it highly
improbable that the Children’s Act
would neglect to state that
the promotion of adoption is one of its aims, make no mention of the
promotion of adoption in the chapter
that deals with adoption, only
to make the promotion of adoption a central purpose of a section in
another chapter that has little
to do with adoption in general.
[168]
In addition, the Minister argues
that section 294 prevents would-be commissioning parents from
circumventing the adoption process.
This argument is different
from the argument that the purpose of section 294 is to
promote
adoption.  As already stated, the
Ad
hoc
Committee argued in its report that
the adoption process obviates the need for double-donor surrogacy
because the two processes
are sufficiently similar.  Taking this
argument to its logical conclusion, the purpose of section 294 is
thus simply to ensure
that surrogacy is only used in order to have a
child that is genetically related to a commissioning parent.
This is the main
purpose proposed by the Minister in her written
submissions.
[169]
On the Minister’s view, the
circumvention of the adoption process is not in the best interests of
children.  So called
“commissioned adoptions” result
in the creation of children not genetically related to their
commissioning parents.
She suggests that it is morally
preferable for there to be a direct genetic link between child and
parent.  Where there is
no such link, the child may be
psychologically harmed.  It is by now trite that the Children’s
Act, in accordance with
section 28(2) of the Constitution, seeks to
promote the best interests of the child, which includes preventing
them from being
psychologically harmed.  Therefore, double-donor
surrogacy should be prevented.
[170]
In this regard, the Minister relied
on the expert evidence of Professor van Bogaert, an ethicist.
In her expert opinion filed
before the High Court, Professor van
Bogaert framed the ethical issue of harm in, as she describes it, an
“either
or” fashion.  She stated that—
“
If
we can reasonably assume that [section 294] causes harm to
relationships, that is, we consider denying a child his or her
genetic
link as a harm, then it should be considered unethical [to
remove section 294 from the Children’s Act].  Conversely,

if we can reasonably assume that the removal of [section 294] will
not cause a child harm, then it should be considered ethical
[to
remove section 294 from the Children’s Act].”
Later, Professor van
Bogaert advocates, “[b]ased upon our current knowledge”,
for the retention of section 294 as a
matter of ethics.  Until
there is sufficient evidence to show that it is not harmful to a
child not to have a genetic link
to her parents, section 294
should remain.
[171]
In my view, preventing the
circumvention of the adoption process is the purpose of section 294.
This purpose is in line with
a plain reading of the section, as well
as its legislative context.  It also fits with the
traveaux
preparitoire
(preparatory documents) of
Chapter 19.  Moreover, it accords with the Minister’s
argument that section 294 furthers
the best interests of children.
The importance of
the purpose of section 294
[172]
Section 294 is a regulative
provision that seeks to limit the ambit of surrogacy arrangements
that can be lawfully pursued.
I have found that in creating
this legal barrier, the section infringes protected rights.  As
such, the purpose of the limitation
is conterminous with the purpose
of the provision.
[173]
The chief goal of section 294 is to
prevent a child from being born as a consequence of a surrogate
motherhood agreement without
being genetically related to at least
one commissioning parent.  I concluded previously that a
contextual and purposive reading
of the provision shows that the
reason for seeking to achieve this goal is to ensure that a party who
wishes to have a child with
no genetic link to themselves or their
partner does so by adopting.
[159]
The purpose of section 294, and thus of the rights limitation,
is to discourage the use of surrogacy where other sufficiently

“similar” avenues are available.
[160]
[174]
Other than bald assertion, the
Minister provided no justification for why this purpose should be
considered important.  Moreover,
making this argument requires
reliance on two contradictory suppositions.  On the one hand, it
supposes that if adoption and
surrogacy are two different mechanisms
for coming to the same end point – that is, to becoming the
parent of a child genetically
unrelated to the commissioning parent
or parents – then adoption is the preferable option.  If
this were not the case,
then there would be no reason to enact
section 294, as both processes would be equally acceptable means of
becoming a parent of
a child genetically unrelated to the
commissioning parent or parents.  On the other hand, it supposes
that becoming the parent
of a child genetically unrelated to oneself
by means of adoption is
functionally
equivalent
to becoming the parent of a
child genetically unrelated to oneself by means of surrogacy.
In essence, as the Minister suggests,
because adoption and surrogacy
both result in a person becoming the parent of a genetically
unrelated child, they “may as
well adopt”.
[175]
These two suppositions pull in
opposite directions.  The first implies that there is some
reason to treat becoming a parent
by way of surrogacy and becoming a
parent by way of adoption differently; that one should be promoted
over the other.  The
second claims that the two processes are,
in all significant respects, identical.  The inconsistency
points to an important
difficulty with the Minister’s
justification of section 294.  While adoption and surrogacy may
both result in a person
becoming the parent of a child unrelated to
them, what this
entails
may be radically different.  The importance of the purpose of
section 294 depends on whether adopting a child is sufficiently

similar to having a genetically unrelated child by way of surrogacy
to render the limitation of AB’s rights reasonable and

justifiable.
[176]
At the hearing, all of the parties
agreed that there are substantial differences between double-donor
surrogacy on the one hand,
and adoption on the other.  While
this concession by the Minister carries weight, we must still be
satisfied that the concession
was correctly made.
[177]
At the outset, there is a broad,
albeit superficial, similarity between double­donor surrogacy and
adoption inasmuch as both
processes result in an individual, or
individuals, becoming the parent of a child who is not biologically
related to them.
However, the evidence before us shows
substantial differences between the
processes
that result in the different outcomes.
[178]
When a person chooses to become a
parent using double-donor surrogacy, they are involved at various
stages in the creation of a
child.  To begin with, commissioning
parents are involved in gamete selection.  This is significantly
different from
adopting a child.  Ms Rodrigues, a clinical
psychologist who has worked with hundreds of infertile couples in
South Africa,
states in her expert opinion:
“
I
must also add the observation that the gamete donor selection process
causes prospective parents – particularly non-biological

parents – to feel that they are contributing to the process of
procreation.  Although there may not be a biological
link,
gamete donor selection by the prospective parents establishes a
positive
psychological
link
between the prospective parents and their prospective child, even
though the prospective child is at this stage only a concept
–
a psychologically powerful concept – in the minds of the
prospective parents.”
[179]
Another key decision made by the
commissioning parent in the case of double donor surrogacy, that
is not made when adopting
a child, is the selection of a surrogate
mother.  This process occurs before conception, and can
radically alter how the commissioning
parent and prospective child
relate once the child is born.
[180]
There are important psychological
differences between becoming a parent through adoption, and having a
child through surrogacy.
While the end result of both processes
is that a person becomes the parent of a child genetically unrelated
to them, the nature
of the relationship between parent and child is
substantially different.  In the case of double-donor surrogacy,
an emotional
link develops between commissioning parent and child
through the choices that the commissioning parent makes before
conception,
at conception, and during pregnancy.  While a
emotional link no doubt develops between parent and adoptive child,
it is of
an entirely different nature.  We must show equal
respect to these different mechanisms of forming a family.
[181]
The difference between adoption and
surrogacy is especially important against the backdrop of
infertility.  As the expert evidence
shows, the choices made
during the surrogacy process “often [have] a strong
psychological healing function that ameliorates
the negative
psychological effects of infertility”.  The decision to
use surrogacy over adoption thus not only plays
a role in developing
a unique bond between commissioning parent and child, but also in the
mental wellbeing of the commissioning
parent as an infertile person.
[182]
A second difference is that
commissioning parents are often intimately involved in the pregnancy
process where surrogacy is used.
As Ms Rodrigues notes, “[i]n
my practice I have found that the overwhelming majority of
commissioning parents desire to be
involved with the pregnancy.”
This is confirmed by the research and expert evidence of Dr Jadva, a
senior research
associate at the Centre for Family Research at
Cambridge University, and several of her colleagues, who confirm that
a study undertaken
by them showed that the vast majority (that is, 83
per cent) of commissioning mothers are “very involved”
with the
pregnancy, with a relatively small minority (the remaining
17 per cent) being “moderately involved”.
[183]
Involvement in the pregnancy
includes attending prenatal medical appointments together with the
surrogate mother, keeping a pregnancy
photo album for the purpose of
creating a narrative in order to facilitate communication of the
surrogate pregnancy to the child
in future and playing voice and
music recordings to the unborn baby during the pregnancy.  This
leads Ms Rodrigues to the
conclusion that—
“
[a]part
from commissioning parents’ own desire for involvement with the
pregnancy, it should also be noted that such involvement
facilitates
the parent-child bonding process and is therefore encouraged by the
clinical psychology community.”
[184]
The parties before us were in
agreement on this point at the hearing.  All accepted that an
emotionally significant parent-child
bond developed between
commissioning parent and child during the pregnancy.  This
difference in process then has implications
for how the commissioning
parent and child relate once the child is born.
[185]
Having a child using double-donor
surrogacy is thus not merely a difference in mechanics.
Instead, the commissioning parent’s
involvement in the
surrogacy process shapes the relationship between the child and
parent.  This difference goes beyond the
superficial similarity
that both processes result in a commissioning parent or parents
having a child that is not genetically related
to them.  The
decisions made by the commissioning parent or parents animate the
relationship between parent and child.
Premising the limitation
of rights on this purpose is therefore misguided: since adoption and
surrogacy are fundamentally different,
it cannot be correct to limit
surrogacy purely because the outcome is the same as adoption.
Psychological harm
and genetic origin
[186]
The Minister asserted in the High
Court that “the child to be created has a right to know about
its genetic origin and has
a right to information about the process
involved in its conception”.  Section 294 does nothing to
guarantee the latter
of these two purported rights.  However,
the former, as explained above, is to some degree ensured by section
294.
[161]
This by assuring that the child born is genetically related to one of
her commissioning parents.
[187]
In this Court, the Minister appears
to have abandoned this argument.  She presented no written or
oral submissions in support
of it.  When questioned on the
expert evidence she tendered in the High Court to support it, she
expressly disavowed any reliance
on it.  Nevertheless, the
Centre persisted with the argument in this Court.
[188]
As I understand their argument, it
entails that it is better to not be born at all, than to be born
without being able to determine
the identity of one’s genetic
parents.  This is premised on two assertions:
(a)
It is better not to be born into a
psychologically harmful situation.  That is, given the choice
between being born into a
psychologically harmful situation and not
being born at all, the latter option is preferable (first argument).
(b)
To be born without being able to determine
who one’s genetic parents are is to be born into a
psychologically harmful situation.
That is, on available
evidence, it is true that to be born without being able to determine
who one’s genetic parents are
is psychologically harmful
(second argument).
[189]
Neither the Minister – nor the
Centre – has convincingly shown that these arguments are true.
I expound on each
below.
[190]
According to the expert opinion of
Professor Metz, placed before the High Court, the only logical
conclusion that can be drawn
from the first argument is that if a
child is unable to determine who her genetic parents are she would
experience a degree of
harm so severe as to warrant the conclusion
that she should never have been born in the first place.  This
necessarily entails
a value judgement.
[191]
In
H
,
Froneman J, writing for a unanimous Court, concluded that evaluating
the existence of children against their non-existence is
“not a
decision that lies outside the law”.
[162]
This was so to “ensure that the values of the Constitution
underlie all law, [and] not that some part of the law can
exist
beyond the reach of constitutional values”.
[163]
I agree.  In the present case, therefore, it is necessary
for us to deal head on with the value judgement of whether
being
unable to determine one’s genetic parents results in so
extensive a harm as to justify the view that it is better never
to
have been born.
[192]
Importantly, section 295(e) of the
Children’s Act mandates the High Court to make this very
decision when determining whether
to confirm a surrogate motherhood
agreement.  The court must not confirm the agreement unless,
putting the best interests
of the prospective child at the centre of
the inquiry, it is of the view that, “generally”, the
agreement should be
confirmed.  In other words, the court must,
on every occasion it decides whether to confirm an agreement, engage
with the
value judgement of whether it would be in the best interests
of the prospective child to be born.
[193]
What is in a child’s best
interests is a flexible inquiry which must be determined on the facts
of each particular case.
As this Court held in
M
,
“[t]o apply a pre determined formula for the sake of
certainty, irrespective of the circumstances, would in fact be

contrary to the best interests of the child concerned”.
[164]
[194]
However, section 294 supersedes
section 295(e) inasmuch as it prevents the court from determining
what is in the best interests
of the child.  What can be
inferred from this legislative scheme is that it will never be in
any
child’s best interests to be born of a surrogate motherhood
agreement if she will not be genetically related to a commissioning

parent.  In sum, section 294 puts a child being able to know her
genetic origin above any of her other interests, including
life
itself.
[165]
[195]
Section 294 therefore contradicts
section 7(1) of the Children’s Act, which requires a number of
factors to be taken into
account “whenever” a provision
of the Children’s Act requires that the best interests of the
child standard be
applied.  These include the nature of the
personal relationship between child and parent,
[166]
the attitude of the parent towards the child,
[167]
the attitude of the parent towards the exercise of parental
responsibilities and rights in respect of the child,
[168]
the capacity of the parent to provide for the needs of the
child,
[169]
the need for the child to maintain a connection with her family,
extended family, culture or tradition,
[170]
the child’s physical and emotional security and her
intellectual, emotional, social and cultural development,
[171]
and the need for the child to be brought up within a stable family
environment.
[172]
All of the section 7 factors must be considered in totality in each
particular child’s unique circumstances so as to
determine what
is in the best interests of that particular child.
[196]
Section 294 privileges one factor to
the exclusion of all others.  For example, a child that could be
brought into a loving
and stable family environment that would enable
her physical, intellectual, emotional, social and cultural
development would be
prevented from being born purely because she
could never know the identity of her genetic parents.
As
this Court held in
AD
,
“[c]hild law is an area that abhors maximalist legal
propositions that preclude or diminish the possibilities of looking

at and evaluating the specific circumstances of the case”.
[173]
Section 294 has exactly this kind of maximalist legal effect.
[197]
This is especially true as those
who, for cultural or other reasons, do not believe that using
double-donor surrogacy is appropriate
are not compelled to pursue
this avenue.  For example, a couple or individual who follow the
African custom that requires
that a boy must know the genetic origin
of his father to form a part of the community need not utilise
surrogacy without a gamete
link.
[174]
Section 293 moreover protects the partner or spouse of a person
wanting to use surrogacy by requiring their written consent.
As
explained in
Fourie
,
people have the right “to self-expression without being forced
to subordinate themselves to the cultural and religious norms
of
others . . . individuals and communities [should be] able to enjoy
what has been called the ‘right to be different’”.
[175]
Removing this restriction does not create an obligation on any other
person to decide to utilise double-donor gametes for
reproduction.
[198]
It therefore cannot be concluded
that it is better not to be born into a given psychologically harmful
situation in all cases.
A much broader investigation is
necessary.
[199]
Even if the first argument were
true; the second remains contentious.  It relies on there being
sufficient evidence to conclude
that not being able to know one’s
genetic origin is harmful to enough children on enough occasions to
justify forbidding
entirely the ability to use double-donor surrogacy
in the case of conception and pregnancy infertility.
[200]
In order to support this claim, the
Minister, in the High Court, relied solely on the evidence of
Professor van Bogaert to assert
that, as a matter of ethics, it is
immoral to “intentionally create children who will not know
both of their genetic parents”.
Notably, this “ethical”
claim is premised on psychological observations.  To this, the
Surrogacy Group replies:
“
Prof
van Bogaert opines that knowledge of one’s ‘genetic
origins’ – in the case of donor-conceived children

knowledge of the identity of the gamete donors – is an
important part of one’s ‘self-identity’.  Prof

van Bogaert’s opinion is denied – first, because Prof van
Bogaert has no expertise in psychology; secondly, because
her opinion
suffers from a lack of intellectual rigor, objectivity and
integrity.”
[201]
To support these claims, the
Surrogacy Group tendered the expert opinion of Professor Hester
Pretorius, an expert in the field of
psychology.
[176]
She concludes that Professor van Bogaert is not qualified to express
expert opinions in the field of psychology, intimating
further that
she would initiate an investigation and disciplinary action against
Professor van Bogaert on the basis that her testimony
is an “an
attempt to mislead the Court, and is unethical”.
[202]
These arguments, together with the
High Court’s finding that the various criticisms against her
evidence are well-founded,
[177]
led counsel for the Minister to concede that the evidence of
Professor van Bogaert is flawed, and that the Minister no longer
intends to place any reliance on it.  Even if this Court were to
accept Professor van Bogaert’s views as purely
ethical
claims, it would be inappropriate in a pluralistic society, such as
our own, to adopt a single moral view as representative
of that of
the South African community in order to justify the violation of
rights.
[178]
[203]
This leaves the Centre’s
argument that “children who are aware that they are donor
conceived suffer psychologically
when they are denied information
about their origins and identity”.  For this proposition,
the Centre relies on two
academic sources.  The first is an
article by Ms Lucy Frith.
[179]
The article by Ms Frith simply does not stand for the proposition
that the Centre contends it does.  Following a review
of
numerous works, Frith concludes that
“
[a]t
present, perhaps all that we can say is that it is not possible to
reach any definite conclusions about the effects of secrecy
and
anonymity on the [psychological] welfare of donor offspring”.
[204]
The second source is an article by
Ms Mhairi Cowden.
[180]
While Ms Cowden makes a compelling argument in favour of disclosing
identifying information to donor­conceived children,
she does so
based on the assumption that the child has already been born.
The article does not stand for the proposition
that a child should
never be born without the capacity to determine her genetic origins.
[205]
It is, however, indicative of the
Centre’s actual concern.  As they explain:
“
The
[Centre] submits that the fact that South African laws have not yet
formalised the realisation of the right to know [the identity
of]
one’s genetic parents, is one of the reasons why section 294 is
constitutionally defensible.  The requirement that
a child
should be able to know the identity of at least one parent provides a
measure of protection of the child’s right
to know his or her
identity.”
[206]
The Centre, in short, contends that
all children have the right to know “identifying information
regarding their donor”.
As previously shown, it is
section 41(2) of the Children’s Act that stands in the way
of children having access to this
information.
[181]
To argue that the purpose of section 294 – and therefore the
purpose of the limitation of the rights in question –
is to
ensure that a child is never born without being able to determine her
genetic origins, is, therefore, as explained above,
an example of
bootstraps logic.  It bears repeating that there are good
reasons for concluding that the purpose of section
294 is to prevent
the circumvention of the adoption process and not to ensure that
children are never born without being able to
determine their genetic
origins.
[207]
Properly construed, the Centre’s
arguments are directed at the constitutionality of section 41(2).
Section 294
does not result in the full realisation of the purported
right to be able to know one’s genetic origins.  Only the
removal
of section 41(2) can achieve this goal, and that issue is not
before us.
The nature and extent of
the limitation
[208]
As stated previously, the limitation
in question is equivalent to the effect of section 294.  The
provision results in an absolute
barrier to the use of surrogacy as a
means of reproduction where a gamete is not provided by at least one
commissioning parent.
The severe implications this has for
those who are both conception and pregnancy infertile has been
discussed above.
[182]
[209]
Further, as there is no comparable
alternative to double-donor surrogacy for those who cannot provide a
gamete in order to have
a child, the limitation of rights in the
present case is far-reaching.  As already shown, double-donor
surrogacy and adoption
are not sufficiently similar processes.
The relation between the
limitation and its purpose, and less restrictive means
[210]
The particular facts of this case
show that section 294 and its purpose are closely related.  The
provision does precisely
what it aims to do: it ensures that all
children born of surrogate motherhood agreements are genetically
related to at least one
commissioning parent.  It means that a
person can only become a parent to a child not genetically related to
themselves through
adoption.
[211]
The relationship between the
limitation and its purpose cannot be afforded much weight in the
present case.  This is because
the limitation achieves its
purpose, which is deliberately prohibitive in nature.  It
follows that the less restrictive means
analysis is also of little
assistance; any measure that is less restrictive would lead to the
non-attainment of the purpose of
section 294.
[212]
The question that lies at the heart
of this matter is not how effectively section 294
achieves
its purpose: all the parties accept that double­donor surrogacy
is rendered impermissible by section 294.  Nor is it whether
the
Legislature could have employed less restrictive means to achieve
this purpose because the prohibition contained in section
294 is the
only way in which the purpose could have been achieved.
[213]
Ultimately, the quintessential
question that lies at the heart of this matter is whether section
294, as it stands, serves a purpose
which is so fundamental as to
outweigh and justify the corresponding limitations of the rights in
question.  As this Court
explained in
Bhulwana
,
“the court places the purpose, effects and importance of the
infringing legislation on one side of the scales and the nature
and
effect of the infringement caused by the legislation on the other.
The more substantial the inroad into fundamental rights,
the
more persuasive the grounds of justification must be.”
[183]
Considering the analysis above, I am of the view that section 294 is
an extensive and unjustifiable intrusion into a central
part of the
lives of those persons who are both conception and pregnancy
infertile.  This violates the rights to psychological
integrity
and equality in an unjustifiable manner.  The applicants are
therefore entitled to relief.
Remedy
[214]
I have found that section 294 of the
Children’s Act unreasonably and unjustifiably infringes the
rights to psychological integrity
and equality.  Section 172(1)(a)
of the Constitution accordingly obliges this Court to declare that
section 294 is inconsistent
with the Constitution and invalid.
[184]
[215]
The question that remains is whether
this Court should suspend the declaration of invalidity in terms of
section 172(1)(b) of the
Constitution, as suggested by the Minister,
in order for the Legislature to be given an opportunity to correct
the defect.
[185]
This Court is not obliged to suspend any declaration of invalidity.
It has the discretion to do so in the event that
it is just and
equitable to follow this course.
[216]
AB has requested that her matter be
dealt with on a “semi-urgent” basis.  In the High
Court, she supported this
request with the following statement:
“
I
am currently 55 years old.  I am in excellent health and hope to
look forward to many more years of enjoying good health.
If I
were still 35 or even 45 years old, having to wait several months or
even a few years for the outcome of this matter would
not have
impacted greatly on my personal life plans to have and raise a
child.  However, as I am getting older, time gets
more
precious.  At this stage in my life, saving three months has
significant value to me.”
[217]
The Surrogacy Group argues that AB
is entitled to the proper vindication of her constitutional rights
violated by section 294, as
well as to immediate and effective relief
which “eliminates the source of the constitutional complaint in
a way that provides
a meaningful remedy”.  For this
proposition, the Surrogacy Group relies on this Court’s
decision in
Van der Merwe
.
[186]
In that matter, Moseneke DCJ held for a unanimous Court that
litigants—
“
are
entitled to a proper vindication of their constitutional rights
violated by the legislation.  Another compelling consideration

is that the order we make must constitute immediate and effective
relief.  It must eliminate the source of the constitutional

complaint in a way that provides a meaningful remedy.”
[187]
Against this
background, the Surrogacy Group insists that the only appropriate
remedy is the striking down of section 294 without
a suspension of
invalidity.
[218]
The Minister argues that the High
Court misdirected itself in failing to give recognition to the
constitutional principle of separation
of powers.  In the
present matter, the Minister contends a suspension of the declaration
of invalidity is warranted because
a striking down of section 294
“would require the Court to engage in the details of
law-making”.  The removal
of section 294 from the
Children’s Act requires that a policy decision be made; the
High Court should have refrained from
making choices that are
reserved for the Legislature.
[219]
As the Minister sees it, the policy
decisions relate to whether the IVF regulations should be amended to
bring them in line with
section 294, or whether section 294 should be
removed to bring surrogacy law in line with the IVF regulations.
The Minister
makes this argument on the basis that the Legislature
should be allowed to reconsider the inclusion of section 294 in light
of
the enactment of the IVF regulations.
[220]
The Minister is correct to say that
section 294 would no longer unfairly discriminate vis-à-vis
the IVF regulations if they were to be amended so
as to prevent the use of double-donor gametes.  This, however,
is only correct
when this aspect of the discrimination is viewed in a
vacuum.  Whether “levelling-down” is acceptable in
any given
case depends on the
effect
that doing so would have.  As this Court pointed out in
Fourie
,
levelling down in order to achieve equality is inappropriate where
doing so leads to equal marginalisation:
“
Levelling
down so as to deny access to civil marriage to all would not promote
the achievement of the enjoyment of equality.  Such
parity of
exclusion rather than of inclusion would distribute resentment
evenly, instead of dissipating it equally for all.  The
law
concerned with family formation and marriage requires equal
celebration, not equal marginalisation; it calls for equality of
the
vineyard and not equality of the graveyard.”
[188]
Denying entitlements
that are currently available to those using IVF in order to prevent
discrimination is an example of parity
of exclusion, which does not
promote the achievement of equality.  To hold otherwise is to
undermine the constitutional values
of human dignity, equality, and
the advancement of human rights and freedoms.
[221]
Notably, as I have held above, even
if double-donor IVF was not legally permissible, section 294 would
still unfairly discriminate
against persons who are both pregnancy
infertile and conception infertile.
[189]
Moreover, I have found that section 294 not only violates AB’s
right to equality, but also her right to psychological
integrity.
In the event that the Legislature were to “level down” –
for example by overriding the IVF regulations
– in order to
ensure that section 294 does not operate in a discriminatory fashion,
section 12(2)(a) would still be violated
independently of the right
to equality.  The Minister’s assertion that the
Legislature should be given the opportunity
to make a policy decision
in relation to whether the IVF regulations should be amended to bring
them in line with section 294
is accordingly misplaced.
[222]
This is not to say, however, that
the striking down of section 294 is void of policy implications.
The regulation of surrogacy
is complex, and involves balancing the
rights of multiple parties.  In deciding whether to confirm a
surrogate motherhood
agreement, a court must in particular consider
the best interests of the child.  It must also consider the
rights of the surrogate
mother.
[223]
Importantly, the central reason for
finding that section 294 violates the Constitution is the effect that
it has on those who are
both conception infertile and pregnancy
infertile.  However, the effect of striking down section 294 is
to upset the scheme
of Chapter 19.  As explained above, section
295(a) requires first that would-be commissioning parents are
pregnancy infertile.
Section 294 then creates a further
hierarchy which, as explained above, obliges the use of the gametes
of both commissioning parents
where possible.  If, for
biological, medical or other valid reasons, this is not possible,
section 294 permits the use
of the gamete of one of the two
commissioning parents.  If the commissioning person is a single
person, the gamete of that
person should be used.
[224]
The removal of section 294 means
that this hierarchy is disrupted.  Seeing as this matter
pertains only to the constitutionality
of a part of the overall
hierarchy, it would be inappropriate to deprive the Legislature of
the opportunity to reformulate section
294 in a manner that it
considers appropriate in light of this judgment.
[225]
For this reason, a suspension of the
declaration of invalidity is warranted despite the applicants’
contention to the contrary.
I am cognisant that this will delay
AB’s ability to have a child.  Considering the difficult
journey she has been on
this is an unfortunate result.  However,
in the context of the implications the removal of section 294 has on
the legislative
scheme of Chapter 19, a suspension remains
appropriate.
Costs
Special costs
order in the High Court
[226]
In the High Court, the Minister
filed her notice to oppose timeously.  Every other document she
filed was, however, late.
[190]
For example, the Minister’s answering affidavit was late by
five months.  It was, moreover, incomplete.
Not only did
the Minister not attach any of the many documents referred to by
Professor van Bogaert in her expert opinion,
but the most
important part of Professor van Bogaert’s opinion was
missing entirely.  A month later, the remainder
of
Professor van Bogaert’s expert opinion was filed.
Various attachments, however, remained absent.
[227]
Up until that point, approximately
six months had been wasted.  The Minister had filed her
pleadings and the expert opinion
she sought to rely on only after
regular prompting from the applicants.  The applicants had
further resorted to filing three
applications requiring the Minister
to discover certain documents referred to in her pleadings.
[191]
[228]
The Minister, however, continued to
drag her feet.  A report referred to in the Minister’s
pleadings in the High Court
– labelled “the Adoption
Report” by the parties – had still not been furnished to
the applicants.
They subsequently approached the High Court for
an order compelling its discovery, which was granted.
[192]
To this day, the Minister has still not delivered the Adoption Report
to the applicants, and various other documents remain
undiscovered as
well.
[229]
It is in this context that the High
Court came to the conclusion that the Minister had “flagrantly
disregarded her constitutional
duty in respect of ensuring that all
relevant evidence was timeously . . . placed before the Court”
and ordered that the
Minister pay costs on an attorney-client scale
in respect of the main application and the interlocutory application
necessitated
by the Minister’s failure to discover the Adoption
Report.
[230]
The Minister asks that the High
Court’s costs orders be reversed by this Court.  Three
reasons have been given as to
why this would be appropriate:
(a)
AB did not make out a case for urgency: she
merely requested that her case be treated as one of semi-urgency and
that judgment in
the matter be given as soon as possible.
(b)
The Minister was entirely at the mercy of
outside experts over whom she had no control.
(c)
The Adoption Report was in the public
domain and the High Court should accordingly have found that it was
always open to the applicants
to obtain it through various other
means provided for in legislation.
[231]
In my view, the urgency of the
matter is neither here nor there.  The Minister’s
responsibility to comply with court
rules and orders is not
contingent on the matter being urgent or otherwise.  An
unnecessary delay of more than eight months,
incomplete discovery of
documents and non-compliance with a court order cannot be shrugged
off merely because the Minister is of
the view that AB’s matter
lacks urgency.
[232]
The Minister’s further
arguments are thin at best.  Notably, the opinion of Professor
van Bogaert was the only expert
evidence tendered by the Minister,
and no extension was sought for her to complete the report.
Second, even if the Minister
was reliant on Professor van Bogaert in
order to file her pleadings on time, it does not excuse her from
failing to comply with
the High Court’s order in respect of the
Adoption Report.
[233]
No evidence was tendered to prove
that the Adoption Report was in the public domain.  Even if the
Adoption Report was in the
public domain this is no excuse for
non­compliance with an order of court.
[234]
The Surrogacy Group contends that a
court of appeal should not interfere with the decision of a lower
court unless that court has
not exercised its discretion
judicially.
[193]
The Minister, they submit, has failed to show how the High Court
failed to exercise its discretion judicially.  I agree.
I
can see no reason advanced by the Minister which shows that the costs
order granted by the High Court was an inappropriate
exercise of
its discretion.  The costs order in the High Court must
accordingly stand.
Costs in this Court
[235]
The applicants, having been
successful in this Court, are entitled to their costs.
Order
[236]
In the result, I would have granted
an order confirming that of the High Court, and suspended the
declaration of invalidity for
18 months; the Minister to bear the
applicants’ costs.
NKABINDE J (Mogoeng
CJ, Moseneke DCJ, Bosielo AJ, Jafta J, Mhlantla J and Zondo J
concurring):
Introduction
[237]
This matter raises complex and
important issues concerning the validity of a legislative provision
that regulates surrogate motherhood
agreements
(surrogacy agreements).  It touches on sensitive issues
that cut across cultures and for both genders: issues
of infertility
and the inability to conceive a child or to produce a gamete,
[194]
in order to meet the legal requirement to enter into a surrogate
motherhood agreement.  At its core is the power of the state
to
regulate the assistive reproductive opportunities available to those
who are conception and pregnancy infertile, to have children
of their
own.  The issues involved thus raise complicated legal and
ethical questions that have an impact on many people who
are unable
to give birth to children of their own.  Naturally, because of
the poignancy of the nature of the issues involved,
sensitivity is
necessary.  Indeed, the issues trigger sympathy for those who
are conception and pregnancy infertile.
[238]
The first applicant (AB) challenged
the constitutional validity of section 294 of the Children’s
Act in the High Court of
South Africa, Gauteng Division, Pretoria
(High Court).  The challenge was based on the grounds that the
“genetic link
requirement” in the impugned provision
violates the rule of law and AB’s rights to equality, human
dignity, privacy,
reproductive autonomy and access to health care
services.  AB sought costs including costs of two counsel.
The second
applicant was joined to the proceedings.
[195]
In the amended rule 16A notice, the second applicant sought the same
declaratory relief and costs, including costs of two
counsel and the
qualifying costs of all the experts who provided their opinions on
affidavit for the second applicant.
[196]
The respondent opposed the application.
[239]
The impugned provision prohibits the
conclusion of a surrogate motherhood agreement where the gametes of
both commissioning parents
are not used or, in the case of a single
commissioning parent, where the gamete of that parent is not used.
The High Court
declared the provision inconsistent with the
Constitution and invalid.
[197]
It further ordered the respondent to pay the costs on a punitive
scale as between attorney and client.  The declaration
of
invalidity was referred to this Court for confirmation as required by
section 172(2) of the Constitution.
[198]
The applicants further seek condonation for their delayed written
submissions.  The respondent appeals against the order
of the
High Court.
[240]
I have read the well-expressed
judgment of my sister, Khampepe J (first judgment).  I am
in agreement with the remarks
regarding the effects of a woman’s
inability to have a child of her own.  I agree also with the
first judgment’s
exposition of the background facts as well as
its conclusion regarding costs.  However, I do not agree that
the declaration
of constitutional invalidity of section 294 should be
confirmed.  None of the implicated rights are violated.
Parties
[241]
The parties, AB, Surrogacy Group,
and the Minister, are described in the first judgment and so is
the Centre, the amicus curiae.
[199]
I am thankful to the Centre for the helpful submissions.
Factual background
[242]
The facts are comprehensively set
out in the first judgment.  I mention briefly those relevant for
the purpose of this judgment.
During the period of 2001 to 2011
AB, who was 55 years old at the time of the High Court judgment,
[200]
underwent a number of IVF cycles to conceive a child.
[201]
Seemingly, 16 of the IVF cycles were done with embryos that had no
genetic link to her.  Of the 16, 14 used both male
and female
anonymous donor gametes.  The IVF treatments twice resulted in
pregnancy but ended in miscarriages.  AB was
advised to consider
surrogacy as a means to have a child.  She was however informed
that the law does not allow persons who
are infertile and cannot
contribute their own gamete for conception, to use surrogacy.
This resulted in the constitutional
challenge in the High Court.
[243]
Reports of divergent opinions by
experts were lodged in the High Court and relied upon by the parties
in support of their respective
perspectives.
[202]
Also, the report of the
Ad hoc
Committee on Surrogate Motherhood was filed and relied upon by the
parties.  This report recommended the retention of the

requirement that the gametes of the commissioning parents should be
used towards conception or in the case of a single person the
gametes
of that single parent.
[244]
The rationale behind the
Ad
hoc
Committee’s recommendation
was this:
“
In
the instance where both the male and 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

commentators.  It was felt 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.”
[203]
Of further note and
in the context of homosexual relationships, the SALC recognised that
individuals have the right to make certain
decisions concerning
reproduction and that the limitation of the right may constitute a
violation of their rights to dignity and
privacy.
Legislative scheme
[245]
Before I deal with the issues, it is
important to have an understanding of the relevant legislative
provisions of the Children’s
Act, because it is against those
provisions that the impugned provision should be considered.
Context is also important.
[246]
Chapter 19 of the Children’s
Act regulates surrogate motherhood agreements.  Before the
commencement of the Act in April
2010,
[204]
“altruistic surrogacy” was allowed while “commercial
surrogacy”, considered to be
contra
bonos mores
(against good morals), was
prohibited.
[205]
Surrogacy agreements were informally entered into seemingly because
of the perceived advantage over the legally prescribed
adoption
procedure.  Artificial fertilisation was regulated by the Human
Tissue Act
[206]
and its Regulations.  The mother, who gave birth to the child,
and her partner, if they were married, were regarded as the
parents
of the child because of the maxim
pater
est quem nuptiae demonstrant
(a father
is he whom the marriage points out).
[207]
[247]
That meant that the commissioning
parents in a surrogate relationship could only become legal parents
of the child if they followed
the adoption procedure in terms of the
Child Care Act.
[208]
The consent of the married couple to artificial fertilisation was
presumed and the child born of the fertilisation was thus
held to be
their legitimate child.
[209]
Section 5(2) of the Children’s Status Act provided that no
right, duty and obligations arose between a child and a
genetic donor
or donors.
[210]
If the consent was given by the surrogate mother for the adoption of
the child, the procedure in terms of the Child Care
Act would
apply.
[211]
[248]
The informal surrogacy agreement
with its resultant uncertainties
[212]
– for example, its effect on the status of the child –
gave rise to an investigation into surrogate motherhood by SALC.

SALC produced a report with certain recommendations to Parliament.
The latter referred the report to the
Ad hoc
Committee
and a Bill was drafted and published for comment in 1995.
[213]
This Bill culminated in the amendment of the Children’s Act, to
include Chapter 19 that generally regulates the content,
conclusion
and confirmation of surrogacy agreements.  The legislative
intervention, although not a panacea for many problems,
[214]
was welcome as surrogacy had been a troubled issue veiled in
uncertainties.
[215]
A discussion of the legislative scheme in this chapter follows
shortly.
[249]
As the long title of the Children’s
Act explicates, the statute was enacted “to give effect to
certain rights of children
as contained in the Constitution; to set
out principles relating to the care and protection of children; to
define parental responsibilities
and rights . . . to provide for
partial care of children . . . to provide for children in alternative
care . . . to make new provision
for the adoption of children . . .
to provide for surrogate motherhood”.  The preamble reads:
“
WHEREAS
the Constitution establishes a society based on democratic values,
social justice and fundamental human rights and seeks
to improve the
quality of life of all citizens and to free the potential of each
person;
AND
WHEREAS every child has the rights set out in section 28 of the
Constitution;
AND
WHEREAS the State must respect, protect, promote and fulfil those
rights;
. . .
AND
WHEREAS it is necessary to effect changes to existing laws relating
to children in order to afford them the necessary protection
and
assistance so that they fully assume their responsibility within the
community as well as that the child, for the full and
harmonious
development of his or her personality, should grow up in a family
environment in an atmosphere of happiness, love and
understanding”.
[250]
The objects of the Children’s
Act, as set out in section 2, include the following:
“
(a)
to promote the preservation and strengthening of families;
(b)
to give effect to the following constitutional rights of children,
namely—
(i)
family care or parental care or appropriate alternative care when
removed from
the family environment;
. . .
(iv)
that the best interests of a child are of paramount importance in
every matter concerning
the child;
. . .
(d)
to make provision for structures, services and means for promoting
and
monitoring
the sound physical, psychological, intellectual and social
development
of children;
. . .
(f)
to protect children from . . . exploitation and any other physical,
emotional or
moral
harm or hazards;
(g)
to provide care and protection to children who are in need of care
and
protection;
. . .
(i)
generally, to promote the protection,
development and well-being of children.”
[251]
Section 4(2) empowers organs of
state, in their implementation of the Children’s Act, “to
take reasonable measures to
the maximum extent of their available
resources to achieve the realisation of the objects of the Act”.
Section 6(1)(a)
sets out general principles that guide the
implementation of all legislation applicable to children, including
the Children’s
Act.  Section 6(1)(b) provides that these
principles will guide “all proceedings, actions and decisions
by any organ
of state in any matter concerning a child or children in
general”.  In terms of section 6(2)(a) to (c) all
proceedings,
actions or decisions in a matter concerning a child
must—
“
(a)
respect, protect, promote and fulfil the child’s rights set out
in the Bill of Rights, the
best interests of the child standard set
out in section 7 and the rights and principles set out in this Act,
subject to any lawful
limitation;
(b)
respect the child’s inherent dignity;
(c)
treat the child fairly and equitably”.
[252]
Section 7 deals with the best
interests of the child.  Section 7(1) states that, when the best
interests of the child standard
is required by a provision of the
Children’s Act, that standard must be applied and several
factors must be taken into consideration,
where relevant.
Moreover, section 7(1) should be read with section 28(2) of the
Constitution.  The factors to be
considered, as set out in
section 7(1), include:
“
(a)
the nature of the personal relationship between—
the
child and the parents, or any specific parent;
. . .
(f)
the need for the child—
(i)
to remain in the care of his or her parent, family and extended
family; and
(ii)
to maintain a connection with his or her family, extended family,
culture or tradition.
(g)
the child’s—
(i)
age, maturity and stage of development;
(ii)
gender;
(iii)
background; and
(iv)
any other relevant characteristics of the child;
(h)
the child’s physical and emotional security and his or her
intellectual, emotional,
social and cultural development”.
[253]
Section 9 goes further to underscore
the best interests of the child standard, in harmony with section
28(2) of the Constitution.
It provides that “[i]n all
matters concerning the care, protection and well-being of a child the
standard that the child’s
best interests is of paramount
importance, must be applied.”  Most of the children’s
rights protected under the
Children’s Act are set out in
section 28 of the Constitution.  It is not insignificant that
the preamble makes specific
reference to those constitutionally
guaranteed rights.  The rights in section 28 are the rights—
“
(a)
to a name and a nationality from birth;
(b)
to family care or parental care, or to appropriate alternative care
when removed from
the family environment;
(c)
to basic nutrition, shelter, basic health care services and social
services;
(d)
to be protected from maltreatment, neglect, abuse or degradation;
(e)
to be protected from exploitative labour practices;
(f)
not to be required or permitted to perform work or provide services
that:
(i)
are inappropriate for a person of that child’s age; or
(ii)
place at risk the child’s well-being, education, physical or
mental health
or spiritual, moral or social development;
(g)
not to be detained except as a measure of last resort, in which case,
in addition
to the rights a child enjoys under
sections
12
and
35
,
the child may be detained only for the shortest appropriate period of
time, and has the right to be:
(i)
kept separately from detained persons over the age of 18 years; and
(ii)
treated in a manner, and kept in conditions, that take account of the
child’s
age;
(h)
to have a legal practitioner assigned to the child by the state, and
at state expense,
in civil proceedings affecting the child, if
substantial injustice would otherwise result; and
(i)
not to be used directly in armed conflict, and to be protected in
times of armed
conflict.”
[254]
Section 41 makes provision for a
child born as a result of surrogacy, or the guardian of that child,
to have access to any medical
information or other information
concerning the child’s genetic parent(s) after the child
reaches the age of 18 years.
This is consistent with the object
of section 294,
[216]
to ensure that the child becomes aware of its genetic origin.
This is so even if the provision does not allow access to information

regarding the identity of the surrogate mother in terms of section
41(2).  Section 41(3) makes it possible for the child and

guardian to receive counselling, if the Director-General of the
Department of Health deems fit.  Chapter 19, spanning sections

292 to 295 outlines procedural and substantive confines of the
surrogate motherhood agreement.  Sections 292 and 293 set out

formalities regarding a surrogate motherhood agreement.
[217]
[255]
Section 294 deals with the
“[g]enetic origin of [the] child”.  It reads:
“
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.”
[256]
Section 295 deals with the
confirmation of a surrogate motherhood agreement by a court.  In
relevant part it reads:
“
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;
. . .
(e)
in general having regard to the personal circumstances and family
situations of all
the parties concerned, but
above
all the interests of the child that is to be born
,
the agreement should be confirmed.”
[257]
Section 296 sets out the
requirements for the artificial fertilisation of a surrogate mother
and section 297 deals with the effect
of the surrogate motherhood
agreement on the status of the child.  Section 297 may be read
in conjunction with section 41(2)
regarding the non-disclosure of the
identity of the surrogate mother to the child.  Section 301
disallows payments in respect
of surrogacy agreements.  Section
303 prohibits artificial fertilisation of a woman in the execution of
a surrogate motherhood
agreement or the rendering of assistance in
the artificial fertilisation, unless that artificial fertilisation is
authorised by
a court in terms of the Children’s Act.
It is against the above history, constitutional provisions and
legislative
scheme that the issues before us must be considered.
High Court proceedings
[258]
The applicants argued that the
genetic link requirement allocates special value to genetic lineage
in the context of establishing
a family through surrogacy.
This, they argued, is in conflict with the legal conception of
family.  The applicants’
“central” challenge
in that Court was based on the infringement of the right to
equality.
[218]
It was contended that the genetic link criterion in section 294
impacted firstly, on the rights of all members of the Class
of
persons
[219]
by prohibiting them from electing to use the donor gametes for the
conception of their child-to-be and, secondly, on the right
of the
Subclass
[220]
by effectively prohibiting them from using surrogacy.
[259]
In relation to each of the Classes,
the applicants submitted that the genetic link requirement violated
AB’s right to equality
because it causes a certain category of
persons – described as members of the Subclass
[221]
– to be treated differently and not to enjoy equal protection
and benefit of the law in terms of section 9(1) of the Constitution.

It was contended that societal marginalisation of infertile people is
perpetuated and the negative effect of infertility is
reinforced.
[222]
[260]
Also in relation to members of the
Subclass, the applicants relied on sections 9(3) and 27(1) of
the Constitution.  In
relation to the former, they said that the
genetic link requirement imposed on the Subclass is particularly
“noxious”
and constitutes unfair discrimination.  As
to the latter, they contended that surrogacy is a form of
“reproductive health
care”.  The genetic link
requirement, they asserted, violates AB’s right to reproductive
health care.  The
applicants contended that the purported
reasons for the genetic link requirement cannot justify the
limitation of the rights of
the members of the Subclass.
[261]
Additionally, the applicants
submitted that the prospective parents’ right to human dignity
and “reproductive autonomy
as guaranteed by section 12(2)(a) of
the Constitution” was violated.  This section guarantees
everyone the right “to
bodily and psychological integrity,
which includes the right to make decisions concerning reproduction.”
The prospective
parent’s right to choose whether to use her own
gametes or through IVF make use of donor gametes was allegedly
infringed.
The applicants said that autonomy is a core element
of human dignity.
[262]
The respondent raised several bases
to support the contention that the statutory genetic link requirement
between the commissioning
parent and the child is not inconsistent
with the Constitution and invalid.  More fundamentally was her
submission that the
constitutional right of a child guaranteed in
section 28(2) of the Constitution will be compromised if the genetic
link requirement
is removed.  The respondent specifically raised
issues regarding the promotion of the child’s right to know its
genetic
origin and to information about the processes involved in the
conception and the prevention, among other things, of: (a) the
creation
of designer children and of shopping around for gametes with
the intention of creating children with particular characteristics;

(b) commercial surrogacy; (c) the potential of exploitation of
surrogate mothers; and (d) circumvention of adoption law.
She
argued that, should the Court find that the impugned provisions limit
the rights invoked by AB, the limitation is justifiable
in terms of
section 36 of the Constitution.
[263]
In declaring section 294 of the
Children’s Act to be inconsistent with the Constitution and
invalid, the High Court approached
the matter by analysing the legal
conception of what constitutes family.  It remarked that the
Legislature should take cognisance
of the advances in fertility and
reproductive technology and the obligation to redefine the
traditional view of the family.
[223]
The Court held that the genetic link requirement—
(a)
is irrational in terms of section 9(1) of the Constitution.  It
referred to the differentiation
in the procedures between IVF in
terms of the Regulations Relating to Artificial Fertilisation of
Persons (IVF regulations)
[224]
and surrogacy.  The Court concluded that there is no rational
connection between the differentiation and the legitimate government

purpose that differentiation is designed to achieve;
[225]
(b)
infringes AB’s or the Subclass’s right—
(i)
not to be unfairly discriminated on the basis of infertility whereas
under the IVF
regulations parents are free to use double-donor
gametes in terms of section 9(3) of the Constitution;
(ii)
to human dignity in terms of section 10 of the Constitution;
(iii)
to reproductive autonomy in terms of section 12(2)(a) of the
Constitution.  The Court remarked
that in making decisions to
use donor gametes towards conception of the prospective child
commissioning parents exercise their
autonomy – a vital part of
human dignity.  The genetic link requirement, it held, thus
infringes human dignity
[226]
and the right to bodily and psychological integrity, which includes
the right
“
to make decisions
concerning reproduction”;
[227]
and
(iv)
to access to health care services in terms of section 27 of the
Constitution.”
[228]
[264]
While the High Court accepted that
“mere differentiation” does not necessarily violate the
right to equality, it said
that the factual differentiation does not
justify a legal differentiation.
[229]
The Court said that this is so “[i]f regard is had to the IVF
regime where parents are free to use double-donor gametes”.
[230]
It held that differentiation based on the genetic link requirement
constitutes discrimination because it has the effect of
excluding
members of the Subclass “from accessing surrogate motherhood as
a reproductive avenue”.
[231]
That exclusion, it said, reinforces the profound negative
psychological effects that infertility has on a person.
[232]
[265]
For that proposition the High Court
relied on the IVF regulations.
[233]
The Court said that they “stand in stark contrast with the
genetic link requirement in terms of which members of the
Class, to
which [AB] belong[s], may not choose to use and select both male and
female donor gametes
purely based on
personal choice
.”
[234]
As the historical context of Chapter 19 shows, the recognition of
surrogacy was an appropriately considered policy decision
that ended
in that legislative scheme.  It was not as a result of an
individual’s choices.
[235]
[266]
The High Court rejected the
respondent’s arguments.  It accepted, however, that the
procedures – IVF and surrogacy
– are fundamentally
different.  It held that that does not however “offer a
justification for the fact that in
law a differentiation is drawn
between [the procedures], allowing infertile people to become
parents.”
[236]
The Court held that whether one donor gamete or two donor gametes are
used would make no difference to the consequence of
the surrogate
motherhood agreement.
[237]
It considered that that would merely be a factor to be taken into
account together with all other relevant factors.
[238]
[267]
In relation to the submissions
regarding the child’s rights in terms of section 28 of the
Constitution, the High Court
held that “there is no persuasive
evidence before the Court that information relating to the child’s
genetic origin
is necessarily in the best interests of the child”.
If that is so, the Court held, that begs the 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 gametes?”
Relying on
Poverty Alleviation
[239]
the Court concluded that there is no rational connection in the
differentiation.
[268]
The High Court said that in making
decisions to use donor gametes towards conception of the prospective
child, for whatever personal
reasons, commissioning parents exercise
their autonomy – a vital part of human dignity.  The
genetic link requirement
thus infringes human dignity
[240]
and the right to bodily and psychological integrity, which includes
the right “to make decisions concerning reproduction.”

The Court’s remarks were based on the fact that “gamete
donor selection, and in fact double-donor selection, is recognised
as
a legal right in the context of IVF”.
[241]
On whether the genetic link requirement constitutes an infringement
to AB’s right of access to health care in terms
of section
27(1) and (2) of the Constitution, the High Court did not
analyse the content of this right.  It held that
the genetic
link requirement limits the right.
[242]
In this Court
[269]
The applicants seek confirmation of
the declaration of invalidity of section 294.  Their case is
largely the same as in the
High Court.  It is thus not necessary
to restate their argument in detail.  The applicants submit that
the legal conception
of family is of “critical importance to
the determination of this matter” and that it does not allocate
special value
to genetic lineage.
[243]
The nub of the applicants’ argument is that surrogacy provides
an opportunity for a person who is conception and pregnancy

infertile
[244]
to have a child – irrespective of whether the child will be
genetically related to the parents or not.
[245]
[270]
The applicants argue that there is
no rational basis for the differentiation caused by the genetic link
requirement.  They
argue that the exclusion on the basis of
infertility is discriminatory and unfair.  The applicants also
argue that the commissioning
parents’ rights to reproductive
autonomy and human dignity are infringed by the genetic link
requirement, because it prohibits
the double-donor gametes decision
by commissioning parents.  Further, the applicants maintain that
AB’s right to access
to health care services and reproductive
health care in terms of section 27 of the Constitution is violated.
[271]
The respondent seeks an order
upholding the appeal and replacing the High Court order by dismissing
prayers 1 and 2 of the notice
of motion.
[246]
Alternatively, she opposes the application for confirmation.
Further alternatively, if section 294 does not pass muster,
the
respondent seeks an order suspending the declaration of invalidity
for Parliament to remedy the inconsistency between the impugned

provision and the IVF regulations enacted in terms of the Health Act,
or for a reading in of the words: “occur in exceptional

circumstances and on application to Court, an exemption of compliance
may be allowed”.
[272]
The amicus curiae emphasises the
importance of a purposive interpretive approach that would give
meaning to the object of the Children’s
Act and to the trend
towards openness in relation to the rights of a child to know their
genetic origin.
Issues
[273]
It is important to highlight at the
outset that this case is about the validity of section 294 of the
Children’s Act and not
about whether the genetic link
requirement in that section has relevance to the legal conception of
family.  The primary issue
is whether the order of the High
Court should be confirmed.  In deciding this question regard
must be had to the text of the
impugned provision, to determine its
legislative objectives.
[247]
This entails an interpretive process limited to what the text of the
impugned provision is reasonably capable of meaning.
[248]
We need to consider whether—
(1)
the impugned legislation is irrational in terms of section 9(1) of
the Constitution;
(2)
AB’s implicated rights to equality; dignity; bodily integrity
including the right
to make decisions concerning reproduction; access
to reproductive health care; and privacy are limited by the genetic
link requirement
in terms of section 294 and if so;
(3)
the limitation of the rights is justifiable in terms of section 36(1)
of the Constitution.
[274]
In determining whether the
declaration of invalidity should be confirmed the starting point is
to delineate the correct approach
to statutory interpretation.
Words in the legislation must be given their ordinary meaning unless
doing so would result in
absurdity.
[249]
And more importantly, statutes must be interpreted
purposively,
[250]
with regard to the context of the statute as a whole.
[251]
Meaning of section 294
[275]
Section 294 of the Children’s
Act bears repeating:
“
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.”
[276]
Section 294 regulates the conclusion
of a valid surrogate motherhood agreement by stipulating certain
requirements.  The prerequisite
for a valid agreement is that
the conception of the child contemplated in that agreement must be
achieved by the use of the gametes
of both commissioning parents or
the gamete of one of the two parents if both parents cannot donate
gametes due to either biological,
medical or other reasons.
Where there is one commissioning parent, as is the case with AB, the
section requires the use of
the gamete of that parent.
[277]
In the main, the legislative scheme
under Chapter 19 protects the commissioning parents or parent or
persons who are permanently
and irreversibly infertile by allowing
them to conclude a surrogate motherhood agreement.  The scheme,
in particular section
294, favours infertile commissioning parents as
it disqualifies the fertile commissioning parent(s) who are able to
conceive without
the assistance of surrogacy.
[252]
[278]
The prohibition in this impugned
provision relates only to the conclusion of the surrogate motherhood
agreement where the gametes
of the commissioning parents or parent
are not used.  The objective of the provision is evident from
the plain language used
in the heading of and the provision itself,
the heading reads: “Genetic origin of child”.
Textually, if both
commissioning parents are unable to contribute
gametes for procreation, they are disqualified.  Single
commissioning parents
are likewise disqualified if they cannot, in
person, contribute gametes for that purpose.
[253]
[279]
The regulatory scheme in Chapter 19
must be considered in the context of the Children’s Act, as a
whole.
[254]
While the Children’s Act seeks to protect other rights in the
Constitution its main objective, as set out in section
2, is to give
effect to the constitutional rights of children: this is plain from
the name of the statute itself.  Its long
title and preamble
also bear that out.  The legislative scheme under Chapter 19,
especially the impugned provision, also protects
the child by
ensuring that a genetic link exists when that child is conceived.
[280]
Section 295(e), read with section 9,
of the Children’s Act also affirms the paramountcy of the best
interests of the child
contemplated in the surrogate motherhood
agreement.  This does not mean that the child’s rights
assume dominance over
other constitutional rights.  In terms of
section 295(e), the personal circumstances and family situations of
“all the
parties concerned” have to be considered when
confirming the agreement.
[281]
Section 28(2) of the Constitution
avows the paramountcy of the best interests of the child in every
matter concerning the child.
The fact that this provision gives
paramountcy to the best interests of the child in matters concerning
the child does not mean
that other rights should not be taken into
account.
[255]
Moreover, as this Court remarked in
De
Reuck
, “constitutional rights are
mutually interrelated and interdependent and form a single
constitutional value system.”
[256]
The Court said that section 28(2), like the other rights in the Bill
of Rights, is subject to limitations that are reasonable
and
justifiable in compliance with section 36 of the Constitution.
It follows that children’s rights do not trump other

rights.
[257]
[282]
With this prelude, the alleged
limitation of AB’s rights needs to be examined with a view to
determining whether the challenged
provision passes muster.
These rights include, broadly, the rights to equality, human dignity,
freedom and security of the
person, privacy and health care.
Is section 294
irrational?
[283]
It is contended by the applicants
that the genetic link requirement in section 294
of
the Children’s Act constitutes an irrational legal
differentiation that violates section 9(1) of the Constitution
because
the IVF regulations permit double donor gametes.
[258]
Section 9(1) provides that “[e]veryone is equal before the law
and has the right to equal protection and benefit of
the law.”
Rationality is an incident of the rule of law.  When enacting
laws, the Legislature is constrained to
act rationally and not
capriciously or arbitrarily.
[259]
The questions that need to be answered are as follows: when is the
differentiation permissible; and under what circumstances
is the
differentiation a limitation of the equality right in section 9(1)
and thus unconstitutional?
[284]
At the outset, an observation needs
to be made that the applicants’ pleading of irrationality is
incorrect.  The objective
of the inquiry here is to determine
whether there is a rational link between the impugned provision
itself and the genetic link
requirement.
[260]
Legislation, or provisions within legislation, becomes invalid for
being inconsistent on its own terms with the Constitution.
[261]
[285]
The correct approach to be adopted
when legislative measures are challenged is to determine whether
there is a rational connection
between the means chosen and the
objective sought to be achieved.
[262]
A mere differentiation does not render a legislative measure
irrational.  The differentiation must be arbitrary or must

manifest “naked preferences” that serve no legitimate
governmental purpose for it to render the measure irrational.
[263]
Moseneke DCJ aptly puts it thus in
Law
Society
:
[264]
“
It
is by now well settled that, where a legislative measure is
challenged on the ground that it is not rational, the Court must

examine the means chosen in order to decide whether they are
rationally related to the public good sought to be achieved.
It
remains to be said that the requirement of rationality is not
directed at testing whether legislation is fair or reasonable or

appropriate.  Nor is it aimed at deciding whether there are
other or even better means that could have been used.  Its
use,
is restricted to the threshold question whether the measure the
lawgiver has chosen is properly related to the public good
it seeks
to realise.  If the measure fails on this account, that is
indeed the end of the enquiry.  The measure falls
to be struck
down as constitutionally bad.”
[286]
The respondent accepted that there
is a differentiation between the surrogacy legislation and the IVF
regulations.  This is
correct because IVF is regulated by the
Regulations Relating to Artificial Fertilisation of Persons.
The Regulations are
enacted in terms of the National Health
Act.
[265]
Surrogacy is regulated in terms of the Children’s Act even
though the artificial fertilisation procedures have to be
carried out
in terms of the Regulations.  Needless to say, the objectives of
the Children’s Act and the National Health
Act are
different,
[266]
hence the obvious differences between IVF and surrogacy.  It
then follows that a statutory provision cannot be measured against

regulations under different legislation to decide whether it is
rational or consistent with the Constitution.
[267]
It is only when the regulatory measure does not serve a legitimate
government purpose that it can fall foul of section 9(1)
of the
Constitution.  Otherwise, many statutes that are replete with
measures that merely differentiate
[268]
would run afoul of the Constitution.
[287]
Is there a rational connection
between the differentiation in question and the legitimate
governmental purpose that differentiation
is designed to achieve?
YES:  The requirement of donor gamete(s) within the context
of surrogacy indeed serves
a rational purpose – the public good
chosen by the lawgiver – of creating a bond between the child
and the commissioning
parents or parent.  The creation of a bond
is designed to protect the best interests of the child-to-be born so
that the child
has a genetic link with its parent(s).
Therefore, a rational connection exists.
[288]
In any event, the disqualification
of AB or of other people similarly placed is rational in that it
safeguards the genetic origin
of the child as contemplated in the
surrogacy agreement, for the child’s best interests.
The
disqualification is no different, for example, from the
disqualification from obtaining or holding a learner’s or
driving
licence in terms of section 15(1) the National Road Traffic
Act.
[269]
Those disqualified include people with biological disabilities
or medical conditions: defective vision (blindness) or uncontrolled

epilepsy and uncontrolled diabetes mellitus, respectively.
[270]
Unquestionably, these disqualifying conditions, as those contained in
the impugned provision, result in differentiation that
serves
legitimate government purposes.  In this case, although AB is
disqualified from concluding the surrogate motherhood
agreement
by
reason of biological, medical or other reasons she is not left
without any legal option.  She could in theory bring herself

within the ambit of section 294 by entering into a partnership
relationship with someone whose gamete may be used for the conception

of the child as contemplated in the agreement.
[289]
Besides, an IVF arrangement cannot
be compared with the use of donor gamete within the surrogacy
context.  This is so because
the procedures in respect of IVF
and surrogacy differ substantially.  In relation to the former,
although the “host
mother” may not necessarily be the
genetic mother of the child she retains a gestational link to the
child as a result of
carrying the child.
In
regard to surrogacy a genetic link is created between the child-to-be
and the commissioning parents or parent.
[290]
It is correct that the IVF
regulations allow for double-donor IVF.  This is in the context
of the National Health Act.
Thus, a specific recipient can, in
terms of regulation 10(2)(a)(ii),
[271]
receive gametes from a male and female donor.  But that cannot
be a justification to strike down the challenged provision.
The
applicants did not dispute that the clarity of origin may be
important to a self-identity and self respect of the child.

The High Court nonetheless considered that, because the same is not
required in the context of IVF where double-donation of gametes
is
permitted, it should not be required in the context of
surrogacy.
[272]
Indeed, as the amicus correctly argued, the logic in the reasoning is
difficult to follow.  The risk to children’s
self identity
and self respect (their dignity and best interests) is,
unquestionably, all important.  The fact that
these rights are
placed at similar risk in another context is hardly a reason to find
their protection irrelevant.
[273]
[291]
The High Court’s
approach,
[274]
suggesting the need for credible data to demonstrate that the
presence or absence of a genetic link in the context of surrogacy

will have adverse effects on the child, is wrong.  That approach
elevates the importance of empirical research above the purposive

construction of the challenged provision, to establish a legitimate
governmental purpose.  In any case, courts do not rely
on the
opinions or “credible data” by experts when determining
the constitutionality of legislation.
[275]
[292]
Additionally, seemingly because of
the applicants’ submission that the legal conception of family
is of “critical importance
to the determination of this
matter”, the Court examined the legal conception of what
constitutes family.  It then remarked
that the “legislature
should . . . take due cognisance of the advances made in fertility
and reproductive technology, and
that with that comes the obligation
to redefine the traditional view of the family”.
[276]
Similarly, that approach is wrong.
Where
polycentric legislative measures are challenged on the basis that
they are irrational a court must, as this Court pronounced
in
Law
Society
,
[277]
examine the means chosen in order to decide whether they are
rationally related to the public good sought to be achieved.
It
needs to be stressed that the legislative measure chosen by the
Legislature in section 294 is rationally related to the
public
good sought to be achieved by government.  Therefore, we cannot
interfere with the lawfully chosen measure on the ground
that the
Legislature should have taken other considerations into account or
that it should have considered a different decision
that is
preferable.
[278]
As this Court stressed in
Albutt
,
[279]
the purpose of the enquiry is to determine not whether there are
other means that could have been used, but whether the means selected

are rationally related to the objective sought to be achieved.
[293]
At the risk of repetition, it cannot
be disputed that the conditions in section 294 are the means to
establishing a genetic link
between the commissioning parents and the
child to be born as contemplated in the surrogacy agreement.
Nor can it be questioned
that establishing a genetic link is a
legitimate government purpose.  The High Court disregarded the
object of the Children’s
Act.  It overemphasised the
interests of the commissioning parent(s) and overlooked the purpose
of the impugned provision
and the best interests of children despite
it being established that cases involving children are pre-eminently
of the kind where
one “must scratch the surface to get to the
real substance below”.
[280]
[294]
Here, the substance below the
surface is the need for a genetic link between a child and at least
one parent.  The importance
of this genetic link is affirmed in
the adage “
ngwana ga se wa ga ka
otla ke wa ga katsala
” (loosely
translated the adage means “a child belongs not to the one who
provides but to the one who gives birth to
the child”).
[281]
Hence clarity regarding the origin of a child is important to the
self identity and self-respect of the child.

Unsurprisingly, this was correctly endorsed by the High Court.
[282]
There is a rational nexus between the purpose of the legislative
scheme, including section 294, that provides a framework
within which
individuals are able to have children and become parents in
circumstances where they would otherwise not have been.
For all
these reasons, I do not support the conclusion by the High Court that
section 294 constitutes an irrational legal differentiation
that
violates section 9(1) of the Constitution.  The rationality
challenge must fail.
Does section 294 limit
AB’s right to equality?
[295]
Having concluded that the impugned
provision is rationally connected to a legitimate government purpose,
the next inquiry is whether
the provision limits AB’s right to
equality.  Here, it is necessary to determine whether the
impugned provision discriminates
against AB and members of the
Subclass in terms of section 9(2) of the Constitution and, if
so, whether the discrimination
is unfair in terms of section 9(3)
of the Constitution.  Section 9(2) and (3) of the Constitution
reads:
“
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms.  To promote the
achievement of equality, legislative
and other measures designed to protect or advance persons, or
categories of persons, disadvantaged
by unfair discrimination may be
taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one
or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age,
disability, religion, conscience, belief, culture,
language and birth.”
[296]
Coupled with other constitutional
values, including human dignity and human rights and freedoms,
equality – both as a value
[283]
and a right – gives meaning to specific substantive
constitutional rights.  The right to equality provides a
mechanism
to achieve substantive equality which, unlike formal
equality that presumes that all people are equal, tolerates
difference.
[284]
[297]
In determining whether this right is
limited, a two-stage inquiry regarding the categories of
discrimination is important.
The inquiry is described by this
Court in
Harksen
where Goldstone J remarked:
“
The
first is differentiation on one (or more) of the fourteen grounds
specified . . . (a ‘specified ground’).
The second
is differentiation on a ground not specified in [section 9(3)] but
analogous to such grounds . . . (‘unspecified’
ground) .
. . formulated as follows in
Prinsloo
:
‘
The
second form is constituted by unfair discrimination on grounds which
are not specified in the subsection.  In regard to
this second
form there is no presumption in favour of unfairness.
Given
the history of this Country, we are of the view that “discrimination”
has acquired a particular pejorative meaning
relating to the unequal
treatment of people based on attributes and characteristics attaching
to them. . . . [U]nfair discrimination,
when used in this second form
in section 8(2) [the equivalent of section 9(3)], in the context
of section 8 as a whole, principally
means treating persons
differently in a way which impairs their fundamental dignity as human
beings, who are inherently equal in
dignity.
Where
discrimination results in treating persons differently in a way which
impairs their fundamental dignity as human beings, it
will clearly be
a breach of section 8(2).  Other forms of differentiation, which
in some other way affect persons adversely
in a comparably serious
manner, may well constitute a breach of section 8(2) as well.’
There
will be discrimination on an unspecified ground if it is based on
attributes or characteristics which have the potential to
impair the
fundamental dignity of persons as human beings, or affect them
adversely in a comparably serious manner.
The
question whether there has been differentiation on a specified or an
unspecified ground must be answered objectively.
In
the former case the enquiry is directed at determining whether the
statutory provision amounts to differentiation on one of the
grounds
specified in section 8(2).  Similarly, in the latter case the
enquiry is whether the differentiation in the provision
is on an
unspecified ground. . . .
If in either case
the enquiry leads to a negative conclusion then section 8(2) has not
been breached and the question falls away.
If the answer is in
the affirmative, however, then it is necessary to proceed to the
second stage of the analysis and determine
whether the discrimination
is unfair.”
[285]
[298]
In this case, it is argued that the
discrimination is based on infertility and the genetic link
requirement.  These grounds
are not specified in section 9(3) of
the Constitution.  The differentiation will amount to
discrimination if the impugned
provision authorises unequal treatment
of people based on certain attributes and characteristics attaching
to them.
[286]
As mentioned above, section 294 regulates the conclusion of valid
surrogacy agreements.  The section does not confer
a right to
conclude the agreement.  The High Court correctly recognised
that mere differentiation does not necessarily violate
the right to
equality.  However, it held that the differentiation based on
the genetic link requirement constitutes discrimination
because it
has the effect of excluding members of the Subclass “from
accessing surrogate motherhood as a reproductive avenue”.
[287]
[299]
It cannot be gainsaid that inherent
human dignity is at the heart of individual rights, including the
right to equality.  It
is true also that equality will mean
nothing if it does not recognise a person’s equal worth as a
human being.
[288]
Undeniably,
infertile
people often feel socially isolated and marginalised.  But, it
cannot be safely said that all these negative effects
of infertility
are attributable to the legislative measures contemplated in section
294, specifically the genetic link requirement
in that provision.
It needs to be stressed that section 294 merely regulates the
conclusion of a valid surrogate motherhood
agreement.  What
disqualifies AB, and others similarly placed, is nothing but the
biological, medical or other reasons as
contemplated in section
294.
[289]
[300]
Notably, as evidenced by the history
behind the legislative scheme, Chapter 19 favours the commissioning
parents or parent.
It has brought certainty regarding the
status of the relationship between the commissioning parents or
parent and the child to-be as well as the
surrogate mother.  Moreover, given the object of the Children’s
Act, it
gives effect to the best interests of the child-to-be.
Section 7 lists the needs for the child to maintain connection with

his or her culture and tradition and the need to protect the child
from psychological harm.  In our diverse society keeping
the
connection with extended family, culture and tradition is indeed part
of the factors showing where the best interests of the
child lie.
[301]
In my view, the alleged ground of
discrimination is not based on the attributes and characteristics of
AB or of the Subclass.
As a result, unless the applicants can
show that the object of the legislative scheme is arbitrary,
capricious or manifests naked
preferences, the “personal
choice” of AB or the Subclass is of no relevance to the
inquiry.
[290]
Section 294 neither creates nor compounds
infertility, as submitted by AB.
[302]
The impugned provision does not
disqualify commissioning parents because they are infertile.  It
affords infertile commissioning
parents the opportunity to have
children of their own by contributing gametes for the conception of
the child contemplated in the
surrogate motherhood agreement.
In the case where the commissioning parent is single, the impugned
provision provides for
that parent, where a gamete of that parent can
be used in the creation of the child.  But if that parent cannot
contribute
a gamete, the parent still has available options afforded
by the law: a single parent has the choice to enter into a permanent
relationship with a fertile parent, thereby qualifying the parent for
surrogacy.
If the infertile
commissioning parents, or parent, decide not to use the available
legal options, they have to live with the choices
they make.
[303]
As a matter of fact, AB made several
attempts to fall pregnant by undergoing the IVF treatment, using her
own ova and the sperm
of her husband at the time.  When this
failed she repeatedly used anonymous donor ova and the sperm of her
husband at the
time by using the IVF option because of her
infertility.  At some stage, after switching fertility clinics
and getting divorced,
she underwent further unsuccessful IVF
treatment cycles – using anonymous donor ova as well as donor
sperm but miscarried.
As a single person, who is conception and
pregnancy infertile, AB sought to resort to surrogacy but the donor
gamete requirement
disqualified her.  But, as mentioned above,
the Legislature affords her an option.  It is her personal
choice and not
her attributes of being infertile or the challenged
provision that place her outside of the ambit of section 294.
This being
the case, it cannot be said that the impugned provision
discriminates against her or members of the Subclass.
[304]
To that end, it is not necessary to
proceed to the final leg of the inquiry – to determine whether
the discrimination is unfair.
In any event, assuming that the
differentiation in section 294 amounts to discrimination, which I do
not find, it does not necessarily
follow that it is unfair.  It
can only be so if the differentiation results in AB or the Subclass
being treated differently
in a way which impairs their fundamental
dignity as human
beings, or which affect
them adversely in a comparably serious manner.
[291]
[305]
For these reasons, I do not agree
with the first judgment that section 294 of the Children’s Act
discriminates against AB
and the members of the Subclass and that the
discrimination is unfair.  Therefore, the challenge based on
section 9(2) and
(3) of the Constitution must also fail.
Does section 294
limit AB’s right
to reproductive
autonomy?
[306]
It is submitted that AB’s
right to dignity and “reproductive
autonomy as guaranteed by section 12(2)(a) of the Constitution”
is limited by the
genetic link requirement in section 294.  I do
not agree.
I emphasise that section
294 of the Children’s Act regulates the conclusion of a valid
surrogate motherhood agreement.
A commissioning parent is
required to donate a gamete for the conception of a child to be
as contemplated in that provision.
[307]
Section 12 of the Constitution deals
with “freedom and security of the person.”  Section
12(2) in particular reads:
“
(2)
Everyone has the right to bodily and psychological
integrity, which includes the right—
(a)
to make decisions concerning reproduction;
(b)
to security in and control over their body;
and
(c)
not to be subjected to medical or
scientific experiments without their informed consent.”
[308]
The Constitution’s concern for
the dignity of women takes a specific form in this section.  The
section recognises that
each “physical body”
[292]
is of equal worth and gives protection to the construction regarding
their bodies.  The conception of “bodily integrity”

goes further than the largely negative protection afforded in
section 12(2)(b).
[293]
[309]
This is the first opportunity for
this Court to vindicate this right in relation to surrogacy.  It
is thus necessary to trace
the scope of the right in section
12(2)(a).  Its scope may be traced from section 11 of the
interim Constitution.  The
primary purpose of the right was to
“ensure that the
physical
integrity
of every person was
protected”.
[294]
In
Ferreira
this Court held that this is how the guarantee of “freedom
(liberty) and security of the person” is ordinarily
understood.
[295]
The Court remarked that it is also the primary sense in which the
phrase – “freedom, and security of the person”
–
is used in public international law.
[296]
[310]
The scope of section 12 deviates in
some aspects from the ambit of section 11, especially in relation to
section 12(2) that extends
the ambit of the right largely to private
relationships.  The latter’s new grouping regarding the
reproductive autonomy
right in subsection (2)(a) is combined with the
right to security in and control over a person’s body in
subsection (2)(b)
and to be free from medical experimentation without
informed consent in subsection (2)(c).
[311]
In
Certification
of the Constitution,
[297]
this Court considered the “right to bodily integrity” in
terms of section 12(2) of the Constitution.  Objection
was taken
to this provision on the ground that it opened the way to abortion.
This Court emphasised that its task was not
to determine whether the
new text permitted abortion but to decide whether the text complied
with Constitutional Principle II
[298]
which required the Constitutional Assembly to include “all
universally accepted fundamental rights” in the Constitution.

The right to “bodily integrity” in section 12(2) was thus
held to be a universally accepted fundamental right.
[312]
Section 12(2)(a) has to this point,
been interpreted to relate to people’s ability to make
decisions about their bodies.
[299]
Although this Court has not yet grappled with this issue, neither on
abortion nor on surrogacy, two High Courts
[300]
have rejected statutory challenges to the Choice on Termination of
Pregnancy Act.
[301]
In
Christian Lawyers II
the High Court, although the case concerned the right of every woman
to determine the fate of her pregnancy, endorsed the views
postulated
above.  Mojapelo J said:
“
The
specific provisions of section 12(2)(a) and (b) of our Constitution
guarantee the right of every woman to determine the fate
of
her
pregnancy.  The Constitution of this Country in explicit
language affords ‘everyone’ the right to
bodily
integrity
including the right ‘to
make decisions concerning reproduction
’
and to security
in and control over
their body.
’  This is quite
clearly the right to choose whether to have
her
pregnancy terminated or not, for short, the right to termination of
pregnancy.
Her
freedom of choice protected under the explicit provisions of section
12(2)(a) and (b) is moreover reinforced by . . . the right
to
equality and protection against discrimination on the ground of
gender, sex and pregnancy.”
[302]
[313]
The right relating to reproductive
autonomy in section 12(2)(a) confronts directly the fact that many
women do not enjoy security
in and control over their own
bodies.
[303]
To that end, the focus is on the individual woman’s own body
and not a body of another woman.  This view finds
support in the
context of scholarly writings that have analysed section 12(2) to
date, generally within the confines of the issue
of abortion and the
subject’s own body.
[304]
[314]
Jurisprudence in comparable
jurisdictions also shows that security of the person encompasses
personal autonomy involving control
over a person’s bodily
integrity.
[305]
The applicants’ argument that the “donor gametes
decision” entails a decision regarding AB’s reproduction

is thus misconceived.  Surrogacy, in its most basic sense, is
the situation where one woman bears a child for another.
As a
result, an interpretation that the text of section 12(2)(a) affords
reproductive autonomy protection to the commissioning
parent in the
context of the surrogate motherhood agreement is unduly
strained.
[306]
[315]
I acknowledge the need to respect
the autonomy of commissioning parents in relation to the choices they
make, for purposes of concluding
surrogacy agreements.  However,
section 12(2)(a) does not give anyone the right to bodily integrity
in respect of someone
else’s body.  If this were so, that
begs the question, how then does section 294 of the Children’s
Act impair
the right to bodily integrity of someone who is unable to
produce gamete?  In my view, while the donor gamete decision is
an important exercise of a prospective parent’s autonomy, it
does not entail a decision regarding the commissioning parent’s

bodily integrity.  It entails the body of a surrogate “host”
mother.
[316]
Furthermore it can hardly be argued
that section 294 is invalid because it is not in line with the
constitutional value of self-autonomy
which is encapsulated in the
maxim
pacta sunt servanda
.
[307]
The recognition of a surrogacy motherhood agreement flows from a
policy decision to reform the law as contained in the Children’s

Act.
[308]
It is this Act which regulates the right to conclude a surrogacy
motherhood agreement.  With section 294 there is no
right to
conclude a lawful surrogacy agreement.  Section 294 does
not prevent AB from regulating her own affairs.
On the contrary
it regulates the choices that are open to her.  Regulation of
the exercise of contractual rights is not by
its nature
constitutionally objectionable and is a common feature in most
democratic jurisdictions.
[309]
[317]
Section 293 requires the
non-commissioning parent, spouse or partner, to give his or her
consent for the conclusion of the surrogate
motherhood agreement.
Where the husband or partner who is not the genetic parent of the
child unreasonably withholds his
or her consent, the court may
confirm the agreement.  This reinforces the view that the
legislative scheme favours infertile
commissioning parents contrary
to the view held by the applicants.  It means that the decision
allowing the creation of a
child, without a genetic link between the
commissioning parent(s) and the child-to-be born, will not accord
with the object of
the legislation that also favours the
commissioning parent.
[318]
For these reasons, I do not agree
with the first judgment that section 294 of the Children’s Act
limits the commissioning
parent’s right to reproductive
autonomy or to make decisions concerning reproduction in terms of
section 12(2)(a) of the
Constitution.  Likewise, the attack on
section 294 based on section 12(2)(a) must fail.
Does section 294 limit
AB’s right to reproductive health care?
[319]
The High Court held that surrogacy
is a form of “reproductive health care” guaranteed in
terms of section 27(1)(a) of
the Constitution.
[310]
This section entitles everyone to have access to health care
services including reproductive health care.
[311]
Section 27(2) obliges the state to “take reasonable legislative
and other measures, within its available resources,
to achieve the
progressive realisation” of these rights.
[320]
It is difficult to understand the
applicants’ constitutional challenge based on the right to have
access to reproductive health
care in terms of section 27(1).
This is so because the applicants have not elaborated on the content
of the right to health
care under section 27.  The first two
subsections of section 27 are to be read together.  In other
words, the one cannot
be read without the other because section 27(1)
does not give rise to a self-standing and independent positive right
that is immediately
enforceable.  This Court made this clear in
Treatment Action Campaign
:
[312]
“
[S]ection
27(1) of the Constitution does not give rise to a self-standing and
independent positive right enforceable irrespective
of the
consideration mentioned in section 27(2).  Sections 27(1) and
27(2) must be read together as defining the scope of
the positive
rights that everyone has and the corresponding obligations on the
State to ‘respect, protect, promote and fulfil’
such
rights.  The rights conferred by sections 26(1) and 27(1)
are to have access to the services that the State is obliged
to
provide in terms of sections 26(2) and 27(2).”
[313]
[321]
In
Soobramoney
[314]
this Court said the following with regard to the rights referred to
in section 27(1)(a), (b) and (c):
“
What is
apparent from these provisions is that the obligation imposed on the
State by
.
. . section 27 in regard to . . . health care . . . [is] dependent
upon the resources available for such purposes, and that the

corresponding rights themselves are limited by reason of the lack of
resources.”
[315]
[322]
The High Court reached its
conclusion regarding section 27(1) without analysing the nature of
this right.  On the facts of
this case, and based on what I have
said regarding the impugned provision in relation to the position of
the infertile commissioning
parent(s), I am unable to conclude that
the genetic link requirement prevents AB and members of the Subclass
from enjoying the
right to have access to health care services,
including reproductive health care.  It cannot therefore be said
that the guaranteed
rights in section 27(1) of the Constitution are
limited by the genetic link requirement in terms of section 294 of
the Children’s
Act.
Does section 294 limit
AB’s right to privacy?
[323]
The applicants’ challenge
based on AB’s privacy right in terms of section 14 of the
Constitution must also fail because
this right is not limited by the
genetic link requirement in section 294 of the Children’s Act.
Section 14 of the Constitution
provides that “[e]veryone has
the right to privacy, which includes the right not to have: (a) their
person or home searched;
(b) their property searched; (c) their
possessions seized; (d) or the privacy of their communications
infringed”.  In
Jordan
[316]
this Court remarked that the right to make autonomous decisions in
respect of “intensely significant aspects of one’s

personal life” falls into the right to privacy but it declined
to posit an independent right to autonomy.
[317]
As with the position in relation to the other rights dealt with
earlier, the impugned provision does not limit AB’s
right to
privacy.
[324]
In the view I take of the matter,
the issue regarding limitation of rights does not arise.
Costs
[325]
There are two issues relating to
costs.  The first concerns the special costs made by the High
Court against the Minister and
the second relates to the appropriate
costs in this Court.  In relation to the former, the High Court
ordered the Minister
to pay special costs
[318]
because of the dilatory manner in which she conducted the proceedings
in almost every step she was required to take.
[319]
It detailed instances which clearly show the Minister’s
flagrant disregard of her duty to ensure that all relevant
evidence
was timeously placed before the Court.
[320]
The Minister asks this Court to set aside the special costs order and
to order each party to pay its own costs.
[326]
It is commonplace that when awarding
costs a court has a discretion which it exercises judicially upon
consideration of the facts
of each case.
[321]
The Minister submits that the High Court erred in awarding the
punitive costs because the issues involved required a thorough

investigation before responses could be provided.  In respect of
the punitive costs concerning the refusal to provide the
Adoption
Report (which refusal prompted the order compelling the Minister to
discover the same) the Minister argued that the Court
ought to have
found that the Report was in the public domain and that the
applicants could have obtained it through various other
means.
There is no merit to these arguments.  The High Court’s
exercise of discretion on costs cannot, in these
circumstances, be
interfered with.  Its special costs order
[322]
should, in my view, be confirmed.
[327]
In opposing the application for
confirmation in terms of section 172(2) of the Constitution, read
with section 15 of the Superior
Courts Act, the Minister does not
seek costs.  She submits merely that the High Court should have
dismissed the application
to declare the impugned provisions
unconstitutional and invalid.  The applicants seek costs
including costs of two counsel.
They submit that AB is entitled
to proper vindication of her constitutional rights which, they
contend, are limited by the genetic
link requirement.  The
applicants submit further that they are entitled to immediate and
effective relief that would eliminate
the source of the
constitutional complaint in a way that provides a meaningful remedy.
[328]
The applicants have succeeded in
part and lost in part: they succeeded in opposing the appeal against
the special costs order but
are unsuccessful in the confirmation
application.
[329]
As this Court has said in
Weare
,
the “ordinary rule in this Court is that where litigants
unsuccessfully raise important constitutional issues against the

State, costs will not be awarded against them.”
[323]
The rationale for this is to ensure that the parties are not
dissuaded from challenging the constitutionality of laws that
limit
their rights in fear of being mulcted with costs.
[324]
If an application is not frivolous or vexatious or in any other way
manifestly inappropriate, as is the case here, the applicants
should
not be ordered to pay costs.
[325]
The applicants have raised important constitutional issues involving,
among other things, an alleged limitation of rights
including the
right to bodily and psychological integrity which includes the right
to make decisions concerning reproduction.
As I have mentioned
earlier, this Court has not grappled with this novel issue.
[326]
A costs order against the applicants in respect of the confirmation
application may have a chilling effect on constitutional
litigation.
In my view, the respondent must also pay the costs in this Court.
Order
[330]
The following order is made:
1.
The order of constitutional invalidity in
respect of section 294 of the Children’s Act 38 of 2005 made by
the High Court of
South Africa, Gauteng Division, Pretoria
is
not confirmed.
2.
The appeal by the respondent is upheld.
3.
The High Court costs order, in paragraphs 2
and 3, in favour of the applicants, is confirmed.
4.
The
respondent is
ordered to pay the applicants’ costs in this Court including
the costs of two counsel.
For the Second
Applicant:
D Jordaan and C Woodrow instructed by
Christo Botha Attorneys Inc
For the
Respondent:

N Cassim SC and H Mpshe instructed by the State Attorney
For the Amicus
Curiae:
K Ozah of the Centre for Child Law
[1]
Bush
Spoken from the
Heart
(Simon & Schuster, New York
2010) at 104.
[2]
Orentlicher “Discrimination out of
Dismissiveness: the Example of Infertility”
(2010) 85
Indiana
Law Journal
143
at 155.
[3]
Id.
[4]
Id.
[5]
World Health Organisation “Infertility is a
global public health issue”, available at
http://www.who.int/reproductivehealth/topics/infertility/perspective/en/.
[6]
For the definition of these terms, see n 9 below.
[7]
This order was granted by the High Court of South
Africa, Gauteng Division, Pretoria per Ledwaba DJP on 28 June
2013 under
case number 38354/13.
[8]
38 of 2005.
[9]
Referred to as conception infertility and
pregnancy infertility respectively.
A person is “conception
infertile” if they are unable to contribute a gamete for the
purposes of conception through
artificial fertilisation.
A person is “pregnancy
infertile” if they are permanently and irreversibly unable to
carry a pregnancy to term.
In other words, they meet the
requirements laid out in section 295(a) of the Children’s Act.
Section 1 of the
Children’s Act 38 of 2005 defines a
gamete
as “either of the two generative cells essential for human
reproduction.”
[10]
Section 294 reads:
“
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.”
[11]
[12].
[12]
The judgment is reported as
AB
v Minister of Social Development
[2015] ZAGPPHC 580;
2016 (2) SA 27
(GP) (High Court judgment).
[13]
In terms of section 167(5) of the Constitution,
which provides:
“
The
Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President is

constitutional, and must confirm any order of invalidity made by the
Supreme Court of Appeal, the High Court of South Africa,
or a court
of similar status, before that order has any force.”
[14]
The confirmation is sought jointly by AB and the
Surrogacy Group.  The Surrogacy Group filed written submissions
on behalf
of both applicants.
[15]
Section 1 of the Children’s Act defines
“commissioning parent” as “
a
person who enters into a surrogate motherhood agreement with a
surrogate mother”.
[16]
S v Makwanyane
[1995]
ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) (
Makwanyane
).
[17]
In terms of section 12(2)(a) of the Constitution,
which the High Court and the Surrogacy Group have referred to as the
right to
“reproductive autonomy” throughout these
proceedings.
[18]
Some academic commentators have suggested,
however, that an attempt at enforcing a surrogacy contract in the
pre-constitutional
era was likely to be refused on the basis that it
contradicted the
boni mores
(moral convictions) of apartheid South Africa.  See for
example Louw “Surrogate Motherhood” in Davel and
Skelton
Commentary on the Children’s Act
(Juta & Co, Cape Town 2007) 19–3 to 19–6.
[19]
Genesis 16:1-2.  My emphasis.
Another example is Jacob and his wives
Rachel and Leah.  After Leah had given birth to four of Jacob’s
children, Rachel
grew jealous.  She subsequently said to Jacob
(Genesis 30:3):
“
Take
my maid, Bilhah, and sleep with her.  She will bear children
for me,
and through her I can have a
family, too
.”  My emphasis.
[20]
Bekker
Seymour’s
Customary Law in Southern Africa
5 ed
(Juta & Co Limited, Cape Town 1989) at 279.
[21]
Allen “Surrogacy, Slavery, and the
Ownership of Life” (1990) 139
Harvard
Journal of Law and Public Policy
144.
[22]
Claire
Fenton-Glynn “Human Rights and Private International Law:
Regulating International Surrogacy” (2014) 10
Journal
of Private International Law
157.
[23]
Section 1 of the Children’s Act.
[24]
Section 1 of the Children’s Act defines
“artificial fertilisation” as—
“
the
introduction, by means other than natural means, of a male gamete
into the internal reproductive organs of a female person
for the
purpose of human reproduction, including—
(a)
the bringing together of a male and female gamete outside the human

body with a view to placing the product of a union of such gametes
in the womb of a female person; or
(b)
the placing of the product of a union of male and female gametes

which have been brought together outside the human body, in the womb
of a female person.”
[25]
South African Law Commission
Report
on Surrogate Motherhood
(Project 65,
November 1992) at para 4.6.3.
[26]
Notably, the Surrogacy Bill was drafted well
before its proposed inclusion in the Children’s Act.
[27]
My emphasis.
[28]
61 of 2003.
[29]
Section 297(1)(a) and (b) of the Children’s
Act.
[30]
Section 297(2) of the Children’s Act.
[31]
92 of 1996.
[32]
Section 300(1) of the Children’s Act.
[33]
Section 301(1) of the Children’s Act.
[34]
In terms of section 305(1)(b) of the Children’s
Act read together with section 305(7).
[35]
Makwanyane
above
n 16 at para 313.
[36]
Minister of Home Affairs v National Institute
for Crime Prevention and the Re-Integration of Offenders (NICRO)
[2004] ZACC 10
;
2005 (3) SA 280
(CC);
2004 (5) BCLR 445
(CC)
(
NICRO
)
at
paras 21 and
23.
[37]
Section 1(a) of the Constitution.
[38]
NM v Smith
[2007]
ZACC 6
;
2007 (5) SA 250
(CC);
2007 (7) BCLR 751
(CC) (
NM
)
at para 145 per her minority judgment.
[39]
Barkhuizen v Napier
[2007]
ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) at para 57.
[40]
S v Jordan
[2002]
ZACC 22
;
2002 (6) SA 642
(CC);
2002 (11) BCLR 1117
(CC) (
Jordan
)
at
para 53.
[41]
Dworkin
The Theory
and Practice of Autonomy
(Cambridge
University Press, Cambridge 1988) at 7.  At 6, Dworkin
describes autonomy as “a term of art [that] will
not repay an
Austinian investigation of its ordinary uses”.
[42]
See, for example,
Oshana
Personal
Autonomy in Society
(Ashgate, Hampshire 2006); Meyers (ed)
Being
Yourself: Essays on Identity, Action, and Social Life
(Rowman and Littlefield, Lanham 2004);
Mackenzie
and Stoljar (eds)
Relational
Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social
Self
(Oxford University Press, New York 2000); Sherwin “A
Relational Approach to Autonomy in Health Care” in Sherwin
(ed)
The
Politics of Women’s Health: Exploring Agency and Autonomy
(Temple University Press, Philadelphia 1998).
[43]
See, for instance,
Makwanyane
above n 16 at paras 225-7;
Dikoko v
Mokhatla
[2006] ZACC 10
;
2006 (6) SA
235
(CC);
2007 (1) BCLR 1
(CC)
at
paras 68-9.
[44]
MEC for Education: Kwazulu-Natal v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC) (
Pillay
)
at
para 53 quoting Gyekye
Person
and Community: Ghanaian Philosophical Studies
(1992)
reprinted as “Person and Community in African Thought”
in Coetzee and Roux (eds)
Philosophy
from Africa: A Text with Readings
(Oxford
University Press, Cape Town 1998) at 321.
[45]
See further,
Meyers
“Intersectional Identity and the Authentic Self?: Opposites
Attract!” in
Mackenzie
and Stoljar above n 42.
[46]
Dworkin
above n
41 at 20.
[47]
Section 12 of the Constitution states:
“
(1)
Everyone has the right to freedom and security of the person, which
includes
the right—
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
to be free from all forms of violence from either public or private

sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading way.
(2)
Everyone has the right to bodily and psychological integrity, which

includes the right—
(a)
to make decisions concerning reproduction;
(b)
to security in and control over their body; and
(c)
not to be subjected to medical or scientific experiments without

their informed consent.”
[48]
In
Barkhuizen
above
n 39 at para 57, Ngcobo J
described
autonomy as “the very essence of freedom”.
[49]
S v Zuma
[1995]
ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at
para
15.
[50]
Makwanyane
above
n 16 at para 9.
[51]
Department of Land Affairs v Goedgelegen
Tropical Fruits (Pty) Ltd
[2007] ZACC
12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at
para
53;
National Coalition for Gay and
Lesbian Equality v Minister of Justice
[1998]
ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC)
(
National Coalition
1998
) at para 21.
[52]
Coetzee v Government of the Republic of South
Africa, Matiso v Commanding Officer Port Elizabeth Prison
[1995]
ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC) at
para
10.
[53]
Sections 12, 15, 16, 18, 21 and 22 of the
Constitution respectively.
[54]
Section 11 of the interim Constitution provided:
“
(1)
Every person shall have the right to freedom and security of the
person, which
shall include the right not to be detained without
trial.
(2)
No person shall be subject to torture of any kind, whether physical,

mental or emotional, nor shall any person be subject to cruel,
inhuman or degrading treatment or punishment.”
[55]
Ferreira v Levin NO; Vryenhoek v Powell NO
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC)
(
Ferreira
)
at
para 183.
See also the discussion of
Lochner v
New York
198 US 45
(1905) in Bishop
and Woolman “Freedom and Security of the Person” in
Woolman et al (eds) 2 ed (Juta & Co Limited,
Cape Town 2012) at
40–15.
[56]
Ferreira
id at
para 174.
[57]
Id at para 185.
[58]
Id at para 170.
[59]
Id at para 184.
[60]
Section 12 of the Constitution is quoted at n 47
above, and section 11 of the interim Constitution is quoted at n 54
above.
[61]
Section 12 of the Constitution is headed “Freedom
and security of the person”.
[62]
Section 33(1) of the interim Constitution.
[63]
This wide approach was taken by Ackermann J in
his minority judgment.  See
Ferreira
above n 55 at para 49.
[64]
Section 36(1) of the Constitution.
[65]
See
Thebus v S
[2003] ZACC 12
;
2003 (6) SA 505
(CC);
2003 (10) BCLR 1100
(CC) at
para 39;
De
Lange v Smuts NO
[1998] ZACC 6
;
1998
(3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at
para 22;
Nel v Le Roux NO
[1996]
ZACC 6
;
1996 (3) SA 562
(CC);
1996 (4)
BCLR 592
(CC)
at para 12;
Bernstein
v Bester NO
[1996] ZACC 2
;
1996 (2) SA
751
(CC);
1996 (4) BCLR 449
(CC) at
para
145.
[66]
See, for example,
Minister
of Justice v Hofmeyr
[1993] 2 All SA
232
(A) at 145H-I:
“
One
of an individual’s absolute rights of personality is his right
to bodily integrity.  The interest concerned is
sometimes
described as being one in corpus, but it has several facets.
It embraces not merely the right of protection against
direct or
indirect physical aggression or the right against false
imprisonment.  It comprehends also a mental element.”
[67]
See
Head of
Department, Department of Education, Free State Province v Welkom
High School; Head of Department, Department of Education,
Free State
Province v Harmony High School
[2013]
ZACC 25
;
2014 (2) SA 228
(CC);
2013 (9) BCLR 989
(CC) (
Welkom
)
at
para 115.
[68]
H v Fetal Assessment Centre
[2014]
ZACC 34
;
2015 (2) SA 193
(CC);
2015 (2) BCLR 127
(CC) at
para
1;
Christian Lawyers’ Association
v Minister of Health
2005 (1) SA 509
(T) 518C-F.
[69]
See Woolman above n 55 at 40–4.
[70]
See, for example,
Els
E v Bruce; Els J v Bruce
1922 EDL 295
;
Bester v Commercial Union
Versekeringsmaatskappy van SA Bpk
[1972] ZASCA 1
;
1973 (1) SA 769
(A);
Barnard
v Santam Bpk
[1998] ZASCA 84; 1999 (1)
SA 202 (SCA).
[71]
NM
above n 38 at
para 40.
[72]
NM v Smith
[2005] 3 All SA 457
(W) at para 46.
[73]
Oxford English Dictionary
(Clarendon Press, Oxford 1996).
[74]
The second judgment does not find that section
12(2)
as a whole
is limited to instances where there has been harm to a person’s
bodily integrity.  A person may still, for instance,
have the
right – in terms of section 12(2)(c) – not to be
subjected, without consent, to a scientific experiment
composed only
of psychological harm.  Instead, the judgment concludes that
section 12(2)(a) in particular is limited to
cases where the
person’s body is affected.
[75]
Second judgment at [
309].
[76]
[60]-
[62].
[77]
Second judgment at
[310].
[78]
Section 12(1)(a) states that “everyone has
the right to freedom and security of the person, which includes the
right to
be free from all forms of violence from either
public
or private
sources”.  My
emphasis.
[79]
For instance, nothing precludes section 12(2)(c)
from protecting against non-consensual medical or scientific
experiments conducted
in the public domain.
[80]
Second judgment at
[312]
– [313].
[81]
H
above n 68 at
para 59.
[82]
See, for instance, Sumner
Abortion
and Moral Theory
(Princeton University
Press, Princeton 2014) at 9.
[83]
Second judgment
[313].
[84]
See
R v Morgentaler
[1988] 1 S.C.R. 30
at 37;
New Brunswick
(Minister of Health and Community Services) v G (J)
[1999]
3 S.C.R. 46
at p. 49;
Carter v Canada
(Attorney General)
[2015] 1 S.C.R 331
at para 64;
Suchita Srivastava v
Chandigarh Administration
AIR
2010 SC
235
at para 11;
Roe v Wade
[1973] USSC 43
;
410
U.S. 113
(1973) at VIII;
Eisenstaedt v
Baird
405 U.S (1972) at para
154
.
[85]
Second judgment at [314].
[86]
[40].
[87]
Infertility problems are as likely to occur in
men as in women.  See Daar “Accessing Reproductive
Technologies: Invisible
Barriers, Indelible Harms” (2013) 23
Berkeley Journal of Gender, Law &
Justice
30 at 14.  See also
Sternke and Abrahamson “Perceptions of Women with Infertility
on Stigma and Disability”
(2015) 33
Sexuality
and Disability
3.
[88]
See, for example, Freeman et al “Psychological
Evaluation and Support in a Program of In Vitro Fertilization and
Embryo
Transfer” (1985) 43
Fertility
& Sterility
48 who note that 50
per cent of women and 15 per cent of men being treated for
infertility described it in this way.
[89]
Domar et al “The Prevalence and
Predictability of Depression in Infertile Women” (1992) 58
Fertility and Sterility
1158.
[90]
Rouchou “Consequences of Infertility in
Developing Countries” (2013) 133
Perspectives
in Public Health
174.
[91]
Dyer et al “‘You are a man because
you have children’: Experiences, reproductive health knowledge
and treatment-seeking
behaviour among men suffering from couple
infertility in South Africa” (2004) 19
Human
Reproduction
960.
[92]
Id.
[93]
Dyer et al “‘Men leave me as I cannot
have children’: Women’s experiences with involuntary
childlessness”
(2002) 17
Human
Reproduction
1663.
[94]
The term is a degrading title given to women who
cannot bear children.
[95]
S v Williams
[1995]
ZACC 6
;
1995 (3) SA 632
(CC);
1995 (7) BCLR 861
(CC) at para 77.
[96]
Pratt “Inconceivable? Deducting the Costs
of Fertility Treatment” (2004) 89
Cornell
Law Review
1121.
[97]
Robertson
Children
of Choice: Freedom and the New Reproductive Technologies
(Princeton University Press, Princeton 1994) at 24.
[98]
Brown et al “Reframing the Debate around
State Responses to Infertility: Considering the Harms of
Subfertility and Involuntary
Childlessness” (2016)
Public
Health Ethics
1.
[99]
On these definitions, see n 9 above.
[100]
Second judgment at [299].
[101]
Second judgment at
[301].
[102]
Second judgment at
[302].
[103]
Minister of Home Affairs v Fourie
[2005]
ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC) (
Fourie
)
at
para 59.
[104]
I refer to this as the “first
differentiation”.
[105]
I refer to this as the “second
differentiation”.
[106]
See Regulations Relating to Artificial
Fertilisation of Persons, GN R1165
GG
40312, 30 September 2016.  These regulations repealed the
previous Regulations Relating to Artificial Fertilisation of
Persons, GN R175
GG
35099, 2 March 2012.
[107]
Harksen v Lane NO
[1997]
ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC) (
Harksen
)
at
paras 50-3.  The approach was
summarised by Goldstone J, at para 54, as follows:
“
(a)
Does the provision differentiate between people or categories of
people?  If
so, does the differentiation bear a rational
connection to a legitimate government purpose?  If it does not
then there is
a violation of section 8(1) [of the interim
Constitution].  Even if it does bear a rational connection, it
might nevertheless
amount to discrimination.
(b)
Does the differentiation amount to unfair discrimination? This
requires a two-stage analysis:
(i)
Firstly, does the differentiation amount to ‘discrimination’?

If it is on a specified ground, then discrimination will have
been established. If it is not on a specified ground, then
whether
or not there is discrimination will depend upon whether,
objectively, the ground is based on attributes and characteristics

which have the potential to impair the fundamental human dignity of
persons as human beings or to affect them adversely in a
comparably
serious manner.
(ii)
If the differentiation amounts to ‘discrimination’,
does
it amount to ‘unfair discrimination’?  If it has
been found to have been on a specified ground, then unfairness
will
be presumed.  If on an unspecified ground, unfairness will have
to be established by the complainant. The test of unfairness
focuses
primarily on the impact of the discrimination on the complainant and
others in his or her situation.
If,
at the end of this stage of the enquiry, the differentiation is
found not to be unfair, then there will be no violation of
section
8(2).
(c)
If the discrimination is found to be unfair then a determination

will have to be made as to whether the provision can be justified
under the limitations clause (section 33 of the interim
Constitution).”
This methodology was
endorsed under the Constitution in
National
Coalition 1998
above n 51 at
paras 15 and 17.
[108]
See also
Prinsloo v
Van der Linde
[1997] ZACC 5
;
1997 (3)
SA 1012
(CC);
1997 (6) BCLR 759
(CC) at
paras
24-6.  In
National Coalition 1998
above n 51 at para 18, the Court found
that “the rational connection inquiry would be clearly
unnecessary in a case in which
a court holds that the discrimination
is unfair and unjustifiable”.  I nevertheless deal
briefly with section 9(1),
as it was the basis of the finding that
section 294 violates the right to equality in the High Court.
[109]
See the High Court judgment above n 12 at para
87.
[110]
Weare v Ndebele NO
[2008]
ZACC 20
;
2009 (1) SA 600
(CC);
2009 (4) BCLR 370
(CC) at
para
46.
[111]
Harksen
above n
107 at para 47.
[112]
Id at para 50.
[113]
City Council of Pretoria v Walker
[1998]
ZACC 1
;
1998 (2) SA 363
(CC);
1998 (3) BCLR 257
(CC) at
para
43.
[114]
Makwanyane
above
n 16 at para 218.
[115]
National Coalition
1998
above n 51 at para 28.
[116]
O’Sullivan “Reproductive Rights”
Constitutional Law of South Africa
2 ed (2012) vol 2 at 37 17.
[117]
Id.
[118]
This Court has,
on several occasions, connected the ability to make autonomous
decisions with the meaning of dignity.  In
Mayelane
v Ngwenyama
[2013] ZACC 14
;
2013 (4)
SA 415
(CC);
2013 (8) BCLR 918
(CC) at
para
73
, the
right to dignity is described as including, “the
right-bearer’s entitlement to make choices and to take
decisions
that affect his or her life – the more significant
the decision, the greater the entitlement.  Autonomy and
control
over one’s personal circumstances is a fundamental
aspect of human dignity”.  Similarly, in
Teddy
Bear Clinic for Abused Children v Minister of Justice and
Constitutional Development
[2013] ZACC
35
;
2014 (2) SA 168
(CC);
2013 (12) BCLR 1429
(CC) (
Teddy
Bear Clinic
) at
para
52
:
“[D]ignity recognises the inherent worth of all individuals .
. . as members of our society, as well as the value of the
choices
that they make”.
See
also
Barkhuizen
above n 39 at para 57 and
Pillay
above n 44 at para 64.
[119]
Compare
Hoffmann v
South African Airways
[2000] ZACC 17
;
2001 (1) SA 1
(CC);
2000 (11) BCLR 1235
(CC) at
paras
28 and 30: exclusion on the basis of a biological condition in the
form of HIV.
[120]
See the concurring judgment of Sachs J in
Matatiele Municipality v President of
the Republic of South Africa
[2006]
ZACC 12
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) at
para
109: “The notion that ‘government knows best, end of
enquiry’, might have satisfied Justice Stratford CJ
in the
pre-democratic era. It is no longer compatible with democratic
government based on the rule of law as envisaged by our

Constitution.”
[121]
See also
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) (
National
Coalition 1999
) at para 54: “The
message is that gays and lesbians lack the inherent humanity to have
their families and family lives
in such same-sex relationships
respected or protected. It serves in addition to perpetuate and
reinforce existing prejudices
and stereotypes.  The impact
constitutes a crass, blunt, cruel and serious invasion of their
dignity.”
[122]
Minister of Health v Treatment Action Campaign
(No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR 1075
(CC)
(
TAC
)
at paras 80 and 95.
[123]
Du Toit v Minister of Welfare and Population
Development
[2002] ZACC 20
;
2003 (2)
SA 198
(CC);
2002 (10) BCLR 1006
(CC) at para 19.
[124]
Second judgment at [273].
[125]
Fourie
above n
103 at para 59.
[126]
Second judgment at [290].
[127]
Second judgment footnote 272.
[128]
Second judgment at
[279]
and [293].
[129]
The second judgment at [290] further contends
that the mere fact that children born using IVF are not entitled to
a genetic link
to at least one of their commissioning parents does
not mean that we should not uphold this entitlement where surrogacy
is used.
As I will argue later, this argument disregards the
fact that it is section 41(2) of the Children’s Act that
prevents
a child from knowing her genetic origin, rather than
section 294.
[130]
Larbi-Odam v Member of the Executive Council
for Education (North-West Province)
[1997]
ZACC 16
;
1998 (1) SA 745
(CC);
1997 (12) BCLR 1655
(CC) at
para 19.
[131]
[84]-[89].
[132]
Harksen
above n
107 at paras 51-2.
[133]
Id at para 51.
[134]
Minister of Finance v Van Heerden
[2004]
ZACC 3
;
2004 (6) SA 121
(CC);
2004 (11) BCLR 1125
(CC) (
Van
Heerden
) at
para
27.
[135]
That the two processes are not comparable is shown in [180]-[185]
below.
[136]
Section 36(1) states:
“
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including—
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.”
[137]
See
Teddy Bear
Clinic
above n 118 at para 64:
“
[A]s
we have emphasised time and again, the rights in the Bill of Rights
are not discrete silos, each protecting a set of interests
that is
neatly categorised and absolutely divided along sharp, bright lines.
Rather, there are levels of interconnectedness
that must be
acknowledged in any constitutional analysis.”
[138]
See Article 4 of the Swiss Bundesgesetz über
die medizinisch unterstützte Fortpflanzung (Federal Act on
Medically Assisted
Reproduction).
[139]
See, for example, Articles 16-7 of the French
Civil Code; Article 10 of the Spanish Ley sobre técnicas de
reproducción
humana asistida (Law about the techniques of
assisted reproduction).
[140]
This is the position, for example, in states like
California.
[141]
See Article 51 of the Russian Semeinyi Kodeks
Rossuskoi Federatsii (Family Code).
[142]
See Article 143 of the Law of Georgia: “On
Health Care”.
I refer here to
the Eurasian Country and not to the State of Georgia in the United
States.  In the latter, there are no official
state laws or
court rulings on surrogacy and the legal status afforded to
surrogacy agreements accordingly remains unclear.
[143]
See section 2 of the
Surrogacy
Arrangements Act 1985 Chapter 49.
[144]
See, for example, Part 4 of the
Parentage
Act 2004 (Australian Capital Territory); Division 2 of the Surrogacy
Act 2010 (New South Wales); section 44 of the Assisted
Reproductive
Treatment Act 2008 (Victoria).
[145]
See, for example, section 29 of the
Family
Law Act Chapter 25 (British Columbia); section 8.2 of the Family Law
Act Chapter F-4.5 (Alberta).
[146]
“
Double-donor surrogacy” refers to
the use of sperm and ova donated by persons other than a
commissioning parent in terms
of the National Health Act for the
purposes of artificial fertilisation.
[147]
See section 54(2) of the Human Fertilisation and
Embryology Act 2008 (HFEA).
[148]
Section 54(1)(b) of the
HFEA.
[149]
See, for example, section 29 of the Family Law
Act 2011 (British Columbia).
[150]
See
Cool Ideas 1186
CC v Hubbard
[2014] ZACC 16
;
2014 (4)
SA 474
(CC);
2014 (8) BCLR 869
(CC) (
Cool
Ideas
)
at
para 28.
[151]
See, for example,
My
Vote Counts NPC v Speaker of the National Assembly
[2015]
ZACC 31;
2016 (1) SA 132 (CC); 2015 (12)
BCLR 1407 (CC).
[152]
My emphasis.
[153]
[44].
[154]
Second judgment at [294].
[155]
Id at
[290]
[156]
See
Head of
Department: Mpumalanga Department of Education v Hoërskool
Ermelo
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC) (
Ermelo
)
at para 70.
[157]
My emphasis.
[158]
This is especially true as most of the wording of
Chapter 19, and of section 294 in particular, has been taken
directly from the
Ad hoc
Committee report.
[159]
[167]-[171].
[160]
A person who is conception infertile but not
pregnancy infertile is prevented by section 295(a) from using
surrogacy because they
can utilise IVF.  Whether this is a
violation of rights, however, is not before us in the present
matter.
[161]
[153]-[166].
[162]
H
above n 68 at
para 24.  Compare
Stewart v Botha
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA)
, where the Supreme Court of Appeal
had to compare the existence of a child with her potential
non-existence.  The Court
held that this sort of question “goes
so deeply to the heart of what it is to be human that it should not
even be asked
of the law”.  It accordingly declined to
engage in any analysis on the point.
[163]
H
id at para 23.
[164]
S v M
[2007]
ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) at para 24
.
[165]
There are ethicists who posit that it will always
be in the best interests of all persons never to have been.
One eloquent
proponent of this theory is Professor David Benatar who
opines that “coming into existence is always a serious harm”.

While this is an intriguing proposition, if it were true, it would
mean that there should be a complete prohibition on bringing

children into the world.  This is a substantially broader
question than those that arise in the present constitutional
challenge.  Benatar
Better Never
to Have Been: The Harm of Coming into Existence
(Oxford
University Press, New York 2006) at 2.
[166]
Section 7(1)(a)(i) of the Children’s Act.
[167]
Section 7(1)(b)(i) of the Children’s Act.
[168]
Section 7(1)(b)(ii) of the Children’s Act.
[169]
Section 7(1)(c) of the Children’s Act.
[170]
Section 7(1)(f)(ii) of the Children’s Act.
[171]
Section 7(1)(h) of the Children’s Act.
[172]
Section 7(1)(k) of the Children’s Act.
[173]
AD v DW
[2007]
ZACC 27
;
2008 (3) SA 183
(CC);
2008 (4) BCLR 359
(CC) at para 55.
[174]
However, if the custom should change, members of
such a community should be entitled to access surrogacy without a
genetic link.
See
Shilubana v
Nwamitwa
[2008] ZACC 9; 2009 (2) SA 66
(CC); 2008 (9) BCLR 914 (CC).
[175]
Fourie
n 103
above para 61.
[176]
Professor Pretorius is a Professor at the
University of Johannesburg and is the vice Chairperson of the
Professional Board of
Psychology of the Health Professions Council
of South Africa.
[177]
High Court judgment above n 12 at para 85.
[178]
National Coalition 1998
above
n 51 at para 37.
[179]
Frith “Gamete donation and anonymity: The
ethical legal debate” (2001) 16
Human
Reproduction
821.
[180]
Cowden “‘No Harm, No Foul’: A
Child’s Right to Know their Genetic Parents” (2012)
26(1)
International Journal of Law,
Policy and the Family
102.
[181]
[153]-[166].
[182]
[82]-[89].
[183]
S v Bhulwana, S v Gwadiso
[1995]
ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 18.
[184]
Section 172(1)(a) provides:
“
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.”
[185]
Section 172(1), in relevant part, provides that—
“
When
deciding a constitutional matter within its power, a court—
(b)
may make any order that is just and equitable, including—
(ii)
an order suspending the declaration of invalidity for any period
and
on any conditions, to allow the competent authority to correct the
defect.”
[186]
Van der Merwe v Road Accident Fund
[2006]
ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC)
.
[187]
Id at para 71.
[188]
Fourie
above n
103 at para 149.
[189]
[127].
[190]
Every document filed by the applicants was on
time.  I mention this only to indicate that none of the
Minister’s filings
were late due to the applicants’
conduct.
[191]
In terms of rule 35(12) of the Uniform Rules of
Court.
[192]
By Ledwaba DJP on 6 March 2014.
[193]
The Surrogacy Group point to the following dicta
from
National Coalition 1999
above
n 121 :
“
A
[c]ourt of appeal is not entitled to set aside the decision of a
lower court granting or refusing a postponement in the exercise
of
its discretion merely because the [c]ourt of appeal would itself, on
the facts of the matter before the lower court, have
come to a
different conclusion; it may interfere only when it appears that the
lower court had not exercised its discretion judicially,
or that it
had been influenced by wrong principles or a misdirection on the
facts, or that it had reached a decision which in
the result could
not reasonably have been made by a court properly directing itself
to all the relevant facts and principles.”
National
Coalition 1999
at para 11 as quoted by
the Supreme Court of Appeal in
Esorfranki
Pipelines (Pty) Ltd v Mopani District Municipality
[2014]
ZASCA 21
;
[2014] 2 All SA 493
(SCA)
at
para 28.
[194]
See above n 9 for definition of gamete.
[195]
The second applicant was joined on 8 November
2013.
[196]
The second applicant generally supported the
analysis of the issues as stated by AB however, given the different
nature and frame
of reference by each of them, it filed a separate
affidavit.  Seemingly, after its joinder, the second applicant
drove the
case on behalf of AB.  In this regard see High Court
judgment above n 12 at para 13.
[197]
Id at para 115.
[198]
Confirmation proceedings are also regulated by
section 15
of the
Superior Courts Act 10 of 2013
, read with
rule 16
of the Rules of this Court.
[199]
First judgment at [5]-[7].
[200]
AB was single from 2002 when she got divorced.
[201]
An IVF cycle involves the process of spontaneous
fertilisation of an ovum with a male sperm outside of the body.
This process
is only conducted by an institution authorised to
do so.  See Artificial Fertilisation of Persons Regulations, GN
R175,
GG 35099, 2 March 2012.
[202]
For example, Ms Rodrigues, a clinical
psychologist as identified in the first judgment at [85], reports:
“
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 element of a person’s being, such as
self-worth, sense of identity and autonomy . . .
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.”
[203]
Quoted in the
High
Court judgment above n 12 at para 37.
[204]
Proc R12 GG 33076 of 26 March 2010 brought into
operation sections of the Children’s Act which were not yet in
operation
at the time.  This included Chapter 19.
[205]
The
Ad hoc
Committee report defines these two types of
arrangements:
“
a)
Altruistic surrogacy means a surrogacy arrangement where the
surrogate
mother is motivated, not by the prospect of financial
gain, but by the altruistic desire to assist another person or
persons
to have a genetically linked child of his or her or their
own.
b)
Commercial surrogacy means a surrogacy arrangement where the
surrogate
mother is motivated by the prospect of financial gain as
the surrogacy is undertaken in exchange for payment.  The
commissioning
parent or parents undertake to pay the surrogate
mother a fee which is greater than the costs incurred and income
lost in conceiving
and bearing the child.”
According to the report,
most of the commentators expressed the view that surrogacy should
not be a means of conducting business
and that commercial surrogacy
should be prohibited, because it is degrading to the surrogate
mother as she is dehumanised to
being a mere “incubator”.
[206]
65 of 1983.
[207]
This maxim received statutory recognition in
section 5(1)
of the Children’s Status Act 82 of 1987 (which
has been repealed in full by the Children’s Act).  That
section
read as follows:
“
(a)
Whenever the gamete or gametes of any person other than a married
woman or
her husband have been used with the consent of both that
woman and her husband for the artificial insemination of that woman,
any child born of that woman as a result of such artificial
insemination shall for all purposes be deemed to be the legitimate

child of that woman and her husband as if the gamete or gametes of
that woman or her husband were used for such artificial

insemination.
(b)
For the purposes of paragraph (a) it shall be presumed, until the

contrary is proved, that both the married woman and her husband have
granted the relevant consent.”
See also
J v Director
General, Department of Home Affairs
[2003] ZACC 3
;
2003 (5) SA
621
(CC);
2003 (5) BCLR 463
(CC), where this Court declared section
5 of the Children’s Status Act invalid and ordered the words
“or permanent
same-sex life partner” to be read in after
the word “husband” wherever it appears in that section.
[208]
73 of 1983 (Chapter 4).  This statute has
also been repealed in full by the Children’s Act.
[209]
This was in terms of section 5(1)(b) of the
Children’s Status Act.  See above n 207.
[210]
This meant that in a situation where a surrogate
mother changed her mind and no longer wished to consent to the
adoption of the
child by the commissioning parents, she would be
entitled to withhold her consent and the agreement would thus be
considered
against good morals.
[211]
Section 18(4) of the Child Care Act provided, in
relevant part, as follows:
“
(4)
A children’s court to which an application for an order of
adoption
is made in terms of subsection (2), shall not grant the
application unless it is satisfied—
. . .
(d)
that consent to the adoption has been given by both parents of the

child, or, if the child is illegitimate, by the mother of the
child.”
[212]
The uncertainty arose also as a result
of
the case of the conception and birth of surrogate triplets, whose
pregnancy was carried by their 40 year old grandmother, for
the
conception on behalf of her own daughter and son-in-law who
contributed their gametes.
[213]
Draft Bill on Surrogate Motherhood, proposed by
South African Law Commission, GN 512
GG
16479, 14 June 1995.
[214]
See, for example,
In
re Confirmation of Three Surrogate Motherhood Agreements
2011
(6) SA 22
(GSJ), concerning the requirements for confirmation
–
by a court as upper guardian of all children
–
of surrogate motherhood agreements in terms of
section 295 of the Children’s Act.
[215]
See
Nicholson
“Surrogate motherhood agreements and their confirmation: A new
challenge for practitioners” (2013)
De
Jure
510 at 515-6.
[216]
Requiring the gametes of the commissioning
parents or parent, in the case of a single parent, to be used for
the purpose of the
surrogacy motherhood agreement.
[217]
In particular, section 293 requires the consent
of the husband, wife or partner of the commissioning parent before
the surrogate
motherhood agreement is confirmed by a court, when a
commissioning parent is married or involved in a permanent
relationship.
A court has the discretion to confirm the
agreement where the consent is unreasonably withheld by a husband or
partner who is
not a genetic parent of the child to be.  This
provision protects the interests of the commissioning parent.
[218]
High Court judgment above n 12 at para 70.
[219]
This is a Class of persons who fulfil the
threshold requirement in terms of which pregnancy infertility
constitutes the basis
for qualifying for surrogacy and who intend to
use surrogacy to become parents.  This type of infertility is
described as
“pregnancy infertility”, referring to the
inability of a woman to procure implantation or to carry a pregnancy
to
full term.  Pregnancy infertility is said to constitute a
basis for qualification for surrogacy.  AB is pregnancy
infertile.
(High Court judgment id at paras 28-9).
[220]
Id at para 70.
[221]
The members of the Subclass are said to be
distinguishable from those of a Class by virtue of the fact that
they are biologically
unable to contribute their own gamete for
conception or are not involved in a sexual relationship with a
person who is able to
make such a contribution.  AB is also
conception infertile.  (Id at paras 27 and 29).
[222]
For these contentions, as it is apparent from
paras 74 and 75 of the High Court judgment, the applicants relied on
the report
of Ms Rodrigues.
[223]
High Court judgment above n 12 at para 46.
[224]
Id at para 78.  Section 10(2)(a)(ii) of the
Regulations above n 106 seems to allow for the use of double-donor
gametes but
sets out conditions under which the artificial
fertilisation should be done.
[225]
High Court judgment above n 12 at paras 85-7.
[226]
Id at para 89.
[227]
Id.  See also para 92.
[228]
Id at para 99.
[229]
Id at paras 73 and 77.
[230]
Id.
[231]
Id at para 76.
[232]
Id.
[233]
Id at para 78.
[234]
Id
at para 79.
[235]
Section 85(2)(b) and (d) and section 73(2) of the
Constitution affirm the fact that legislation comes about as a
result of a process
that involves policy decisions being taken by
relevant governmental duty bearers.
Section 85(2)(b) and (d)
provides:
“
(2)
The President exercises the executive authority, together with the
other members
of the Cabinet, by—
.
. .
(b)
developing and implementing national policy;
.
. .
(d)
preparing and initiating legislation.”
Section 73(2) of the
Constitution, in relevant part, provides:
“
Only
a Cabinet member or a Deputy Minister, or a member or committee of
the National Assembly, may introduce a Bill in the Assembly”.
[236]
High Court judgment above 12 at para 82.
[237]
Id at para 84.
[238]
Id.
[239]
Poverty Alleviation Network v President of the
Republic of South Africa
[2010]
ZACC 5; 2010 (6) BCLR 520 (CC).
[240]
High Court judgment above n 12 at para 89.
[241]
Id at para 92.
[242]
Id at para 99.
[243]
For this proposition they rely on
Fourie
above n 103 at paras 59 and 86, and
Du
Toit
above n 123 at para 19.
[244]
Because, regarding the first, she cannot
contribute her gamete(s) for conception and regarding the second, is
unable to carry
pregnancy to term.
[245]
As in the High Court, the parties relied on the
opinion by experts in support of their perspectives.  I will
not place reliance
on the divergent opinions of the experts in
deciding the issues because this Court, as the ultimate authority on
the questions
regarding the validity of legislation and violation of
rights, should arrive at its own independent evaluation.
See
Pillay
above n 44 at paras 81-3.
[246]
These prayers are:
“
1
Confirming the declaration of invalidity of section 294 of the

Children’s Act, Act 38 of 2005, made by Basson J in the North
Gauteng High Court (Pretoria) on 12 August 2015;
2
Directing that the costs of this application, including
the costs
incumbent upon the employment of two counsel, be paid by the
respondent”.
[247]
In the High Court,
much
reliance is placed on the views of the experts to demonstrate this
point. In
Cool Ideas,
above
n 150 above, this Court had this to say at para28 about tenets of
statutory interpretation
:
“
A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity.  There are three important
interrelated riders to this general principle,
namely:
(a)
that
statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised;

and
(c)
all statutes
must be construed consistently with the Constitution,
that is, where
reasonably possible, legislative provisions ought to be interpreted
to preserve their constitutional validity.
This proviso to the
general principle is closely related to the purposive approach
referred to in (a)
[248]
See
National
Coalition 1999
above n 121 at para 24.
[249]
SATAWU v Garvas
[2012]
ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8) BCLR 840
(CC) at para 37.
[250]
Cool Ideas
above
n 150 at para 28.
[251]
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) (
Bato
Star Fishing
) at paras 89-90.
[252]
This view is bolstered by the High Court’s
observation that the inclusion of homosexual parents and single
parents in the
context of surrogacy demonstrates an acceptance of
the constant change and evolution in the social practices requiring
the Legislature
to take cognisance of the changes.  See High
Court judgment above n 12 at para 38.
[253]
Section 294 is broadly permissive because it does
not disqualify fertile commissioning parents.  This group of
parents is
disqualified by section 295(a), if they can give birth to
a child without the assistance of surrogacy or IVF.  This
section
gives a court the discretion not to confirm a surrogacy
agreement “unless the commissioning parent or parents are not
able
to give birth to a child and that the condition is permanent
and irreversible”.
[254]
Cool Ideas
above
n 150 at para 28.
[255]
In this regard see
Centre
for Child Law v Minister for Justice and Constitutional Development
[2009] ZACC 18
;
2009 (6) SA 632
(CC);
2009 (11) BCLR 1105
(CC) at para 29 which provides “The
constitutional injunction that ‘[a] child’s best
interests are of paramount
importance in every matter concerning the
child’ . . . means that the child’s interests are ‘more
important
than anything else’, but not that everything else is
unimportant”.  See also
S v
M
above n 164 at paras 25-6.
[256]
De Reuck v Director of Public Prosecutions
(
Witwatersrand
Local Division
)
[2003] ZACC 19
;
2004
(1) SA 406
(CC);
2003 (12) BCLR 1333
(CC) at para 55.
[257]
Id.  See
S v M
above n 164 at paras 25-6.  The Court stressed that section
28(2) “cannot be said to assume dominance over other
constitutional rights”.
[258]
High Court judgment above n 12 at para 87.
[259]
See
Pharmaceutical
Manufacturers Association of South Africa: In re Ex Parte President
of the Republic of South Africa
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) (
Pharmaceutical
Manufacturers
) at paras 17 and
89;
New National Party v Government of
the Republic of South Africa
[1999]
ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5) BCLR 489
(CC) at para 19.
[260]
The following was said in
Albutt
v Centre for the Study of Violence and Reconciliation
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at para
51:
“
The
Executive has a wide discretion in selecting the means to achieve
its constitutionally permissible objectives.  Courts
may not
interfere with the means selected simply because they do not like
them, or because there are other more appropriate means
that could
have been selected.  But, where the decision is challenged on
the grounds of rationality, courts are obliged
to examine the means
selected to determine whether they are rationally related to the
objective sought to be achieved.
What must be stressed is that
the purpose of the enquiry is to determine not whether there are
other means that could have been
used, but whether the means
selected are rationally related to the objective sought to be
achieved.”
[261]
See
Bato Star
Fishing
above n 251 at para 90 and
Wary Holdings (Pty) Ltd v Stalwo (Pty)
Ltd
[2008] ZACC 12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
(CC) at para 61 that provide that
legislation must be interpreted in its context.  See also
Investigating Directorate: Serious
Economic Offences v Hyundai Motor Distributors (Pty) Ltd In re:
Hyundai Motor Distributors
(Pty) Ltd v Smit NO
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC)
(
Hyundai
)
at paras 21-2 which provides that legislation must be interpreted
through the prism of the Bill of Rights and in ways which
give
effect to the values in the Constitution.
[262]
Prinsloo
above n
108 at para 25-6.
See also
Harksen
above n 107 at paras 42, 44 and 53
.
[263]
Prinsloo
id at
para 25.
[264]
Law Society of South Africa v Minister of
Transport
[2010] ZACC 25
;
2011 (1) SA
400
(CC);
2011 (2) BCLR 150
(CC) (
Law
Society
) at paras 32-3
.
See also
Albutt
above n 260 at para 51.
[265]
At section 68(1)(k).  In paragraph 8.21 of
its answering affidavit, the respondent denies that—
“
allowing
the commissioning [parent] of a child with no genetic link is
analogous to a commissioned child in an IVF environment.
In an
IVF environment, the commissioning mother carries the pregnancy
herself.  The commissioning mother becomes the gestational

mother and thus a gestational bond is at least created between the
child and the commissioning mother.  The procedure is
highly
regulated under the National Health Act and the regulations
thereto.”
[266]
As its long title shows, t
he
National Health Act was enacted to provide a framework for a
structured uniform health system while taking into account the

obligations imposed by other laws on the national, provincial and
local governments with regard to health services.  The
preamble
to the National Health Act recognises, among other things, the
socio-economic injustices, imbalances and inequalities
of health
services of the past.  It therefore aims to ensure compliance
with, inter alia, section 27(2) of the Constitution
that enjoins the
state to take reasonable legislative and other measures within its
available resources to achieve the progressive
realisation of the
right to have access to health care services, including the right to
reproductive health care.  It is
in this context that the
Minister is authorised to make regulations regarding artificial
fertilisation of persons in terms of
section 68 of the National
Health Act.
[267]
The following judgments provide that we cannot
use regulations or other subordinate legislation and similar
instruments to interpret
primary legislation:
Welkom
above n 67 at para 65;
Sebola v
Standard Bank of South Africa Ltd
[2012]
ZACC 11
;
2012 (5) SA 142
(CC);
2012 (8) BCLR 785
(CC) at para 62;
Rossouw v First Rand Bank Ltd t/a FNB
Homeloans (Formerly First Rand Bank of South Africa Ltd)
[2010] ZASCA 130
;
2010 (6) SA 439
(SCA) at para 24 and
National
Lotteries Board v Bruss
[2008] ZASCA
167
;
2009 (4) SA 362
(SCA) at para 37.
[268]
Take for example, the
Electoral Act 73 of 1998
.
Although section 19 of the Constitution confers the right to vote on
every adult citizen to vote one can only do so if
duly registered
and their details inserted on the voters roll.
Section 6
of
the
Electoral Act prohibits
the placing on the voter’s roll of
the name of a person below the age of 18 years and consequently
denies them the opportunity
to exercise a right afforded to them by
the Constitution.  So, if the qualification age of 18 years for
the exercise of
the right to vote is not attained, the person below
the age of 18 years is disqualified and the disqualification cannot,
by itself,
render section 6 irrational in terms of section 9(1) of
the Constitution.
[269]
93 of 1996.
[270]
In relevant parts, s
ection
15(1) of the National Road Traffic Act reads:
“
(1)
A person shall be disqualified from obtaining or holding a learner’s
or driving licence—
(f)
if he or she is suffering from one of the following diseases
or
disabilities:
(v)
uncontrolled diabetes mellitus;
(vi)
defective vision ascertained in accordance with a prescribed
standard.”
[271]
Regulation 10(2) reads:
“
(a)
A competent person shall not effect in vitro fertilisation except
for 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.”
It is noteworthy that the
rest of the regulations deal with different medical processes and
procedures that apply to different
forms of artificial
fertilisation.
[272]
High Court judgment above n 12 at para 85.
[273]
In the case of IVF, there is a gestational link
between the mother and the child.  The gestational link is
considered emotionally
significant as it allows the woman to feel
that the child is “hers” and that she is a “normal”
mother
who conceived “naturally”.
[274]
High Court judgment above n 12 at paras 85-6.
[275]
See
Pillay
above n 44 at paras 81-3.
[276]
High Court judgment above n 12 at para 46.
[277]
Law Society
above n 264 at para 34.
[278]
Id at para 35.
See
also
Bel Porto School Governing Body v
Premier, Western Cape
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR 891
(CC) at paras 41-5.
[279]
Albutt
above
n 260 at para 51.  See also
Law
Society
above n 264 at paras 32-3
.
[280]
See
Welkom
above n 67 at para 130.
[281]
The other somewhat related principle under the
common law is expressed in the latin maxim that
mater
semper certa est
(the mother is always
certain).
[282]
High Court judgment above n 12 at para 85.
[283]
In terms of section 1(a) of the Constitution.
[284]
Van Heerden
above n 134 at paras 26-7.
[285]
Harksen
above n
107 at paras 47-8.
[286]
Id at para 47, where this Court here refers to
Prinsloo
above
n 108 at paras 28, 31 and 33.
[287]
High Court judgment above n 12 at para 76.
[288]
President of the Republic of South Africa v
Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 41.
[289]
See example in n 291 below.
[290]
Pharmaceutical
Manufacturers
above n 259 at para 84 quoting
Prinsloo
above n 108 at para 25.
[291]
For example, blindness does not impair blind
people’s human dignity.  Likewise, a legislative
provision that prevents
blind people from being pilots or drivers on
public roads cannot be said to discriminate unfairly against the
blind people.
It is the blindness that disqualifies them from
the occupation of being pilot or driver.
[292]
Woolman “Dignity” in Woolman et al
(eds)
Constitutional Law of South
Africa
2 ed (2006) vol 2.
[293]
Id at 40-77.
[294]
See
Ferreira
above
n 55 at para 170
.
Under
the interim Constitution the
structure of
the right was divided into three major components: freedom of the
person; security of the person; and freedom from
torture, cruel and
degrading treatment.
[295]
Id.
[296]
For example, the International Covenant on Civil
and Political Rights (ICCPR), the European Convention for the
Protection of Human
Rights and Fundamental Freedoms, and the African
Charter on Human and Peoples’ Rights all use the phrase in a
context which
shows that it relates to detention or other bodily or
physical constraints.
Article 9(1) of the ICCPR
provides: “Everyone has the right to liberty and security of
person. No one shall be subjected
to arbitrary arrest or detention.
No one shall be deprived of his liberty except on such grounds
and in accordance with
such procedure as are established by law.”
Article 5 of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms provides in part:
“
Everyone has
the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases
and in
accordance with a procedure prescribed by law.”
Article
6 of the African Charter on Human and Peoples’ Rights
provides: “
Every individual
shall have the right to liberty and to the security of his person.
No one may be deprived of his freedom except
for reasons and
conditions previously laid down by law. In particular, no one may be
arbitrarily arrested or detained.”
[297]
Ex parte Chairperson of the Constitutional
Assembly: In re Certification of the Constitution of the Republic of
South Africa,
1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) (
Certification
of the Constitution
) at paras 59-62.
[298]
Constitutional Principle II reads:
“
Everyone
shall enjoy all universally accepted fundamental rights, freedom and
civil liberties, which shall be provided and protected
by entrenched
and justiciable provisions in the Constitution, which shall be
drafted after having given due consideration to
inter alia the
fundamental rights contained in Chapter 3 of this Constitution.”
[299]
Christian Lawyers Association v Minister of
Health
2005 (1) SA 509
(TPD)
(
Christian Lawyers II)
and
Certification of the Constitution
above
n 297 at paras 59-62.
[300]
In the first case,
Christian
Lawyers Association of SA v Minister of Health
1998 (4) SA 1113
(T) (
Christian Lawyers
I
), the Court was confronted with a
legal issue concerning the interpretation of section 11 of the
interim Constitution –
whether the word “everyone”
in that section included the unborn child.  In the second one,
Christian Lawyers II
id, the Court dealt with section 12(2) of the Constitution.
[301]
92 of 1996.
[302]
Christian Lawyers II
above n 299
at 526H-7A.
[303]
For the proposition that women do not enjoy
security in and control over their own bodies see: Neff “Woman,
Womb, and Bodily
Integrity” (1990) 3
Yale
Journal of Law & Feminism
327;
Banda “Building on a global movement: Violence against women
in the African context” (2008) 8
African
Human Rights Law Journal
1; and Office
of the United Nations High Commissioner for Human Rights (OHCHR)
Report of the Special Rapporteur on
violence against women, its causes and consequences on her mission
to South Africa
, (A/HRC/32/42/Add.2,
June 2016).
[304]
See Currie and de Waal
The
Bill of Rights Handbook
6 ed (Juta,
Cape Town 2013) at 287 and Woolman “Reproductive Rights”
in Woolman
et al
above n 292.
[305]
In Canada, individual autonomy and dignity are
not freestanding rights.  Rather, those rights are encompassed
in the right
protected in section 7 of the Canadian Charter of
Rights and Freedoms (Constitution Act 1982) which states that
“[e]veryone
has the right to life,
liberty
and security of the person
and the
right not to be deprived thereof except in accordance with
principles of fundamental justice”.
The
Supreme Court of Canada in
R v
Morgentaler
above n 84, held that the
sections of the Criminal Code which restrained access to abortion
interfered with the liberty and security
of the person.  It
held that “security of the person” encompasses a notion
of
personal autonomy involving . . .
control over one’s bodily integrity
free
from state interference”.  In
New
Brunswick (Minister of Health and Community Services) v G (J)
above
n 84 at para 58, the notion was said to extend to an individual’s
physical or psychological integrity, including any
state action that
causes physical or serious psychological suffering.  Recently
in
Carter v Canada (Attorney General)
above n 84 at para 64, the Supreme Court of Canada confirmed
that “underlying [the rights to liberty and security
of the
person] is a concern for the protection of individual autonomy and
dignity”.
In India article 21 of the
Constitution provides that “[n]o person shall be deprived of
his life or personal liberty except
according to procedure
established by law”.  In
Suchita Srivastava v
Chandigarh Administration AIR
above n 84 at para 11, the Supreme
Court of India applied article 21 in the following manner: “There
is no doubt that a
woman’s right to make reproductive choices
is also a dimension of ‘personal liberty’ as understood
under article
21 of the Constitution of India.  It is important
to recognise that reproductive choices can be exercised to procreate
as
well as to abstain from procreating.  The crucial
consideration is that a woman’s right to privacy, dignity and
bodily
integrity should be respected.  This means that there
should be no restriction whatsoever on the exercise of reproductive

choices such as a woman’s right to refuse participation in
sexual activity or alternatively the insistence on use of

contraceptive methods.  Furthermore, women are also free to
choose birth-control methods such as undergoing sterilisation

procedures.  Taken to their logical conclusion, reproductive
rights include a woman’s entitlement to carry a pregnancy
to
its full term, to give birth and to subsequently raise children.
However in the case of pregnant women there is also
a ‘compelling
state’ interest; in protecting the life of the prospective
child.  Therefore, the termination
of a pregnancy is only
permitted when the conditions specified in the applicable statute
have been fulfilled.”
In the United States of
America (US), there is no specific constitutional right to bodily or
psychological integrity.  Previous
cases which have addressed
issues related to these aspects have generally been grounded in the
5
th
/14
th
Amendments to the US Constitution,
providing that no person shall be deprived of life, liberty or
property without due process
of law.  The Supreme Court has
developed the rights to liberty and privacy in cases involving
substantive due process.
In
Roe v Wade
above n 84 at
VIII, it was held that the right to privacy allowed a woman to
procure an abortion.  However, the competing
interests of the
foetus (sought to be protected by the state) and the woman were seen
as limiting the woman’s rights.
The right to privacy was
expanded in
Eisenstaedt v Baird
above n 84 at 154, protecting
the right to use contraceptives for unmarried individuals, where it
was recognised that, if anything,
the right of the individual is to
be free from unwarranted government intrusions into matters so
fundamentally affecting a person
as the decision to bear or beget a
child.
[306]
Hyundai
above n
261 at para 24.
[307]
This phrase essentially means that “agreements
are binding and must be enforced” and has long been a
principle of
South African law.  See
Paulsen
v Slip Knot Investments 777 (Pty) Limited
[2015]
ZACC 5
;
2015 (3) SA 479
(CC) at para 126.  This principle
applies to this matter due to the fact that a surrogacy motherhood
agreement can be viewed
as a contractual agreement.
[308]
Carmichele v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at
para 36.  There this Court remarked that the “major
engine for law reform should be the [L]egislature not
the
[J]udiciary”.
[309]
Barkhuizen
above
n 39 at para 30;
Natal Joint
Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) at paras 18-9.
[310]
High Court judgment above n 12 at para 98.
The applicants support these findings.
[311]
The other rights mentioned in section 27(1) of
the Constitution are the right to have access to sufficient food and
water and
social security, including, if people are unable to
support themselves and their dependants, appropriate social
assistance in
terms of section 27(1)(b) and (c), respectively.
[312]
TAC
above n 122.
[313]
Id at para 39.
[314]
Soobramoney v Minister of Health,
KwaZulu-Natal
[1997] ZACC 17
;
1998 (1)
SA 765
(CC);
1997 (12) BCLR 1696
(CC).
[315]
Id at para 11.
[316]
Jordan
above n
40.
[317]
Id at
para 53.
[318]
These costs are also referred to as punitive
costs.
[319]
For example: The notice of intention to oppose
was filed late; the answering affidavit was five months late –
but was incomplete;
the expert opinions she relied upon were filed
after regular prompting by the applicants and certain other
documents relied upon
by her were filed after application to the
High Court to compel her to discover them; and a certain report
(Adoption Report),
which should have been discovered after being
compelled to do so by the High Court, has to date not been
discovered.
[320]
High Court judgment above n 12 at paras 109-12.
[321]
Ferreira
above n
55 at para 3; see also
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd
[2015] ZACC 22
;
2015 (5) SA
245
(CC);
2015 (10) BCLR 1199
(CC), where the Court considered the
exercise of the discretion to make a substitution order.  See
also
Affordable Medicines Trust v
Minister of Health
[2005] ZACC 3
;
2006
(3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 138.
[322]
The costs order reads as follows:
“
2.
The respondent is directed to pay the costs 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 opinion on affidavit for the second applicant, on a
scale as between attorney and client.
3.
The respondent is directed to pay the costs of interlocutory

application that was filed on 25 February 2014, including the
costs incumbent upon the employment of two counsel, on a scale
as
between attorney and client.”
[323]
Weare
above n
110.
[324]
Id at paras 78-9.
[325]
See
Biowatch Trust v
Registrar Genetic Resources
[2009]
ZACC 14
; 2009 (6) 232 (CC);
2009 (10) BCLR 1014
(CC) at paras 23-4.
[326]
In this regard see [120].