Surrogacy not legal without genes of a parent, court finds

AT least one parent must donate eggs or sperm for a surrogacy agreement to be legal in South Africa.

This ruling by the Constitutional Court yesterday dashed the hopes of an infertile woman who had wanted a surrogate to carry a baby for her, despite her being medically unable to use her own eggs or to donate sperm from a spouse or sexual partner.

She is single after a split from her husband, and now her only legal option for a child is adoption.

At stake during the complex legal arguments were fundamental issues involving the natural bond between a parent and child‚ as well as the child’s right to know where he or she came from.

In its ruling‚ the court said there must be a genetic link between the baby and at least one of the people commissioning the surrogate pregnancy.

The court refused to confirm a high court order which invalidated the requirement of a genetic link between the baby and at least one of the people commissioning the surrogate pregnancy.

ConCourt tackled this issue after the High Court in Pretoria declared last year that the geneticlink requirement for a parent who entered into a surrogate motherhood agreement was invalid.

The woman‚ known as AB to protect her privacy‚ had undergone 18 in-vitro fertilisation (IVF) cycles to conceive a child between 2001 and 2011.

In the first two‚ she used her own eggs and her then husband’s sperm.

Her gynaecologist advised her it would not be feasible to continue harvesting her eggs.

For the next IVF cycles‚ she used anonymous donor eggs with the sperm from her then husband.

The IVF treatments resulted in pregnancy twice, but ended in miscarriages.

The woman was advised to consider surrogacy as a means to have a child.

But she was informed that the law did not allow surrogacy for people who were infertile and could not contribute their own gamete cells for conception. This resulted in the high court challenge.

Justice Bess Nkabinde said in her judgment the requirement of donor gamete cells within the context of surrogacy served a rational purpose of creating a bond between the child and the commissioning parents or parent.

“It’s a very sensitive issue,” Nkabinde said.