Court case challenges sibling bond affected by surrogacy – The Mail & Guardian

With the growing use of assisted reproduction, the use of surrogacy has become increasingly popular among those who wish to conceive.

Wwith the increasing use of assisted reproductive technology, the use of surrogacy has become increasingly popular among those who wish to conceive. Under South African law, various legal issues have arisen relating to the constitutional rights of children born through surrogacy.

Surrogacy involves a practice where a woman carries and gives birth to another woman’s child. This practice can be initiated in several ways, including in vitro fertilization, intrauterine insemination, using an embryo created by the parents by combining their own gametes (their own embryos) or by using a donor egg or sperm if necessary. Surrogacy gives thousands of interfilial individuals the chance to build a family, and as mentioned in KB v Minister for Social Development, gives life to the right to a family life found in Article 16 of the Universal Declaration of Human Rights.

The appellants in the case, KB (the wife) and HBB (the husband) brought an application in the Mpumalanga Division of the High Court seeking an order declaring section 294 of the Children Act unconstitutional in so far as it prohibits a child born of a surrogacy agreement the possibility of being genetically linked to one’s already born sibling. Section 294 provides for the “genetic origin of the child” and states that no contract of surrogacy can be valid unless the conception of the child contemplated by the contract takes place through the use of gametes from both ordering parents, or is not possible due to biological, medical or other valid reasons, the sex cell of at least one of the commissioning parents or where the commissioning parent is a single parent, the sex cell of that person. The appellants applied to the court to have “or where the genetic origin of the child is the same as any of her siblings” is read into the end of the provision.

In the case of KB v Minister for Social Development, KB struggled with uterine growths, which made it difficult for her to conceive naturally. The couple tried to conceive for five years and had many failed attempts to conceive through in vitro fertilization (IVF) and intrauterine insemination (IUI). Their doctor recommended they conceive using gametes and went on to fertilize seven embryos. At KB’s first transfer, the baby, ESB, was born at 33 weeks. Subsequently, and to provide ESB with a sibling, the couple tried again, and during her second transfer the baby was born at six months, but resulted in KB’s uterus being removed. She was unable to carry her remaining embryos and resulted in the appellants having to consider a surrogacy process. At the same time, HBB had a previous vasectomy that was reversed and was diagnosed with testicular cancer, which was then treated medically. It was therefore physically impossible to provide gametes with either parent’s genetics. The appellants had then found a surrogate who could assist them and prepared a surrogacy agreement to enforce the dual donor surrogacy to be signed when the court granted the order holding section 249 of the Children’s Act unconstitutional.

The Minister for Social Development opposed the application and raised several issues regarding the case and the relief sought by the appellants. First, the Minister found that the appellants had failed to identify the rights of the minor child and the violation of those rights. Secondly, the Minister noted that the constitutional invalidity of section 249 has already been decided in the earlier case of AB and Another v. Minister for Social Development. Thirdly, the Minister argued that the proposed “reading in” of section 249 contravenes the doctrine of separation of powers, as the measure is one which the legislature and executive should decide. The Supreme Court rejected the application on the ground that the appellants had not identified a right that had been violated and the basis for such violation. The Supreme Court held that the section in question had nothing to do with a minor child’s right to have a genetically related sibling and that the removal of the genetic link requirement (or an exemption from such requirement) would be a departure from the chosen policy position.

On the other hand, the appellants have invoked section 28 of the constitution which gives effect to the rights of children. This section gives children several basic rights, including name, nationality and family or parental care. Section 28(2) provides for special consideration of the minor child’s best interests. The appellants also invoked the right to equality under section 9 of the constitution and the right to human dignity under section 10 of the constitution. The appellants claimed that the rights of both their children (one unborn and one already born), as referred to in Section 29, Section 9 and Section 10 of the Constitution, were violated by Section 249 of the Children’s Act. KB separates her facts from the facts about AB and another Constitutional Court decision in 2017. Her legal team argued that the genetic link requirement is in the best interest of the child and should therefore be extended to cases of a shared genetic link between siblings. Professor Donrich Thaldar submitted submissions on the issue and submitted that the requirement of genetic linkage found in Section 294 causes pain and suffering to infertile persons as surrogacy is impossible when both parents are unable to contribute gametes.

The Supreme Court of Appeal (SCA) dealt with the issue by asking three important questions:

  1. Is there a right to have a genetically linked sibling (and the source of such a right)?
  2. How it relates to surrogacy according to 19 chapters of the Children’s Act
  3. Whether section 249 should be invalidated to the extent that it is incompatible with the constitution.

Chapter 19 of the Children Act regulates surrogacy in South Africa. Prior to the promulgation of Chapter 19, all surrogacy agreements were governed by commercial law and remained uncertain. This uncertainty prompted an inquiry into surrogacy by the South African Law Commission, which led to the enactment of section 294. The plain language of the provision aims to create a bond between the child and at least one parent.

In the case of AB v Minister for Social Development, the court emphasizes that the purpose of the provision is to assist fertile parents who, due to various biological, medical or other reasons, cannot conceive a child naturally, and to use their gametes (or one of their gametes) to conceive the child . This is confirmed in the SCA judgment when the court states that the purpose, text and context of the legislation is to protect the unborn child by ensuring that the child’s genetic origin was linked to at least one of the parents. This very purpose, text and context is not supported by the child getting its genetic origin from its siblings. According to paragraph 20 of the judgment, the court touched on the essence of the matter, which is that the interests of the child protected under section 249 are not the same as those of a child already born. The relief requested by the appellants is therefore not supported by the purpose of section 249.

In this regard, the court emphasized that the means chosen to realize the purpose of section 249 was one chosen by the legislature and therefore courts cannot interfere with that choice if the result would lead to a different purpose and means. This would lead to a violation of the separation of powers. The SCA further considered that it is bound by the Constitutional Court’s interpretation of section 249 in regard to AB v Minister.

The appellants argued that section 249 violates the rights of the children involved in the matter. As part of their argument, the appellants noted that having a biological sibling can be crucial in cases of illness that the child may face later in life. However, the SCA in its judgment rejected the appellants’ arguments, noting that there are no rights constitutionally obtainable for a minor child to have a genetically related sibling. Furthermore, the SCA rejected the argument that the child’s rights according to section 9 have been violated because the appellants have not been able to establish how the minor child should be treated differently.

The crux of this case is not about the right of a genetically linked sibling, but instead highlights the right of one to have a child born through surrogacy when both the mother and father are unable to contribute a gamete. It is in this aspect that the constitutional right to dignity and equality is violated. The constitution states that South Africa belongs to everyone who lives in the country, including parents struggling to conceive naturally – and therefore we are all equally worthy of dignity and equality. With an increase in infertility and an increase in the use of surrogacy, the surrogacy legal framework should respond to this case rather than shy away from addressing it.

As it stands, when both mother and father are unable to contribute gametes for the unborn child’s surrogacy, such an agreement becomes legally void and impossible. In reality, this may not be the case. The nature and purpose of a surrogacy agreement is to provide infertile individuals with the opportunity to experience parenthood. However, reading into a “sibling link clause” as proposed by KB does not provide the legal solution required to give the courts the freedom required to administer justice in the best interest of the child based on the facts before them.

This nature and purpose should be reflected in the applicable legislation to allow for the loading of future reproduction processes and exceptions as is the case in this matter. Allowing cases of dual-donor surrogacy where good cause is shown would better reflect our constitutional values.

Charlise Finch is a candidate attorney at Herold Gie Attorneys. The article was co-authored by the firm’s director, Kaamilah Paulse, who is also a matrimonial and family law attorney at the firm.

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