Door slams on hope for surrogacy

PRETORIA: Bad news for parents unable to contribute their own sperm and eggs for the conception of a child is that the Constitutional Court yesterday spoke the last word on the subject.

It ruled that the so-called genetic link requirement for surrogacy had to remain in place.

This means that as in the case of in-vitro fertilisation (IVF), a genetic lineage is required. The practical effect is that at least one of the parties needs to contribute a gamete.

For years the statutory requirement was that surrogacy commissioning parents had to contribute their own gametes – both or one of them. If there was no genetic link, there could be no surrogacy agreement.

The high court in Pretoria last year ruled this requirement to be against the constitution, which protected human rights.

That judgment followed an application by a woman who tried IVF – in vain – and as she did not have a partner and could not contribute an egg herself, surrogacy was not an option.

This was in spite of the surrogate mother agreeing to carry the baby for her.

As a single infertile person was legally forbidden to use surrogacy as a means to become a parent, she turned to the court. Although the high court ruled in her favour, five judges of the Constitutional Court declined to confirm it.

Judge Sisi Khampepe, who wrote a 109-page judgment on the subject, concluded that surrogacy had to be regulated by the law, which stipulated there must be a genetic link – by one or both parents.

The judge commented that at the heart of this matter lay the question of the extent to which the state may regulate the reproductive opportunities available to those who were unable to have children of their own.