By Aliki Edgcumbe
Last month, a constitutional challenge arrived at the doors of the Mpumalanga High Court. The applicant in the matter is a 46-year-old woman known in the court papers only as “KB”.
She is contesting the constitutionality of South Africa’s surrogacy law which requires at least one of the commissioning parents to contribute a gamete – either an ovum or sperm – to the prospective child’s conception.
The requirement, at its core, ensures a genetic link exists between the commissioning parent and the child born of the surrogacy arrangement – but not all individuals can contribute a gamete to the conception of a child.
KB’s road to motherhood is potholed with devastating disappointments.
KB and her husband married in 2011 and were eager to start a family together.
The next five years consisted of a gruelling battle to fall pregnant. Sadly, notwithstanding their immense efforts to conceive using their gametes via in vitro fertilisation (IVF) and intrauterine insemination (IUI), they were unable to have a child.
The couple refused to give in to despair and resolved to consult another fertility expert, who informed them that they had a low prospect of success using their gametes.
After careful consideration, the couple decided to use donor gametes. They found suitable donors, and seven viable embryos were successfully produced. The first embryo transfer into KB’s uterus resulted in a successful pregnancy and the birth of the couple’s much-hoped-for son in 2018.
Thereafter, the couple desired to provide their child with a genetically related sibling, and so KB underwent a second embryo transfer. While this resulted in pregnancy, tragically at 23 weeks gestation KB suffered life-threatening complications and had to undergo an emergency hysterectomy.
In the process, the couple endured the agonising loss of their daughter and the devastating reality that KB would be unable to carry any remaining embryos.
The only option available to realise their hopes is surrogacy. However, due to the requirement for a parent-child genetic link contained in section 294 of the Children’s Act, the couple is barred from making use of a surrogate to have a child.
KB has approached the High Court in an endeavour to have the genetic-link requirement changed to allow for a situation like theirs.
Is the parent-child genetic link requirement a necessary prerequisite for surrogacy arrangements?
The problem with this requirement is that it presupposes that a genetic link is essential to the creation of well-functioning families and well-adjusted children. However, psychological researchers studying this very issue at Cambridge University paint a rather different picture.
Their studies suggest that donor-conceived children and those born via surrogacy enjoy strong relationships with their parents, have high self-esteem and are generally unconcerned about their origins or the nature of their conception.
While there are questions as to the applicability of this research to the South African context, it nevertheless makes a compelling case and one we ought to consider before mindlessly jumping on the genetic link bandwagon.
For many couples, having a genetically related child is not an available option. Some may seek out adoption as a way to build their families, while others may choose to use medical advancements, such as the use of donor gametes. Surrogacy is often the option of last resort. One cannot say that the families are somehow less valuable than families where children are naturally conceived.
Surrogacy in South Africa is strictly regulated by the Children’s Act – and for good reason. The legislators seek to protect the interests of all parties involved in the surrogacy arrangement – and most importantly, those of children. Still, it is worth asking whether the genetic-link requirement does advance children’s rights, or whether it merely hinders infertile couples from accessing the means of having a much-hoped-for child.
KB has suffered a great deal. Her sincere wish to give her son a genetically related sibling is understandable. Other infertile couples have very different but equally valid, painful stories to tell.
Professor Thaldar and Dr Shozi, law academics from the University of KwaZulu-Natal, came up with a golden-mean solution: Retain the current parent-child genetic link in the Children’s Act, but add a sentence to that Act that gives the court a discretion to dispense with this requirement upon good cause shown.
This will provide a solution not only to KB’s case but also provide a general, flexible solution to others in future in merit-worthy cases.
South Africa’s constitutional commitment to being a more humane and caring society surely compels our courts to treat people like KB with respect, care and compassion?
Permitting surrogacy where good cause is shown, despite the absence of a parent-child genetic link, will better reflect our constitutional values.
*Edgcumbe is a doctoral research fellow at the School of Law, University of KwaZulu-Natal.