Genetics I: South Africa considers the importance of a genetic link

15 August 2015

Debra Wilson

 Is the idea of requiring a genetic link between parent and child a utopian ideal that is ‘far removed from the social reality of society?’

This is an issue recently addressed by the High Court in Pretoria. In October 2014, the Court heard arguments on behalf of a 56 year old woman, who has been trying unsuccessfully for 13 years to have a child. Her journey has involved 18 In Vitro Fertilisation attempts, with the two successful implantations resulting in miscarriages. Finally, she made the decision to use both a surrogate and an egg donor, giving up on the idea of a genetic link to the child. While she had originally intended to use her husband’s sperm, the couple had subsequently divorced, resulting in the need to also use a sperm donor.

Under South African law, surrogacy is permissible provided there is a genetic link with at least one of the intended parents. In her case, this criterion would not be met. The applicant, joined by the Surrogacy Advisory Group, therefore applied to the High Court for a declaration that the requirement of a genetic link be struck down as unconstitutional and as a human rights violation.

The Social Development Minister, Bathabile Dlamini opposed the application, arguing that the requirement of a genetic link was “the entire basis upon which the surrogacy law was introduced in South Africa.” Without a genetic link, the Minister felt that the agreement was not one of surrogacy, but of creating a child for adoption.

Judge Basson disagreed with the Minister, commenting that “a family cannot be defined with reference to the question whether a genetic link between the parent and the child exists. Our society does not regard a family consisting of an adopted child as less valuable or less equal than a family where children are the natural or genetically linked children of the parents.” It was therefore appropriate that the genetic link requirement be struck down.

The Surrogacy Advisory Group responded positively to this decision, commenting that “We are delighted that the court has taken the stance to protect infertile people from discriminatory legislation” and other advocates commented that this would likely lead to an increase in surrogacy arrangements.

As an interesting postscript, the Social Development Minister found herself on the receiving end of a punitive cost order, for “flagrantly disregard[ing]” her constitutional duty to ensure that evidence is placed before the court in a timely manner. 

The next step is for the issue to be appealed to, and considered by, the Constitutional Court. The High Court’s declaration of unconstitutionality must be confirmed by the Con Court before it can be of effect.

So, does genetics matter? This seems to be the question for 2015, one that has also recently been considered in the European Court of Human Rights and in China. The uncomfortable answer (for the judges in question) is that if legislation requires it, then it is for Parliament to change, unless judges are prepared (as they often are in surrogacy cases) to engage in creative judicial interpretation. Fortunately for the applicant in this case, the South African judge was permitted to strike down a requirement that she considered unconstitutional and removed from social reality.