One woman’s 14-year battle with infertility has led to couples unable to have children now being able to start a family using surrogacy — without one of the partners having to give eggs or sperm to the birth mother.
In the first-of-its-kind case‚ a Cape Town woman successfully challenged a provision of the Children’s Act of 2005 that allows surrogacy only when at least one of the commissioning parents contributes an egg or sperm.
The Pretoria High Court on Wednesday struck down the genetic-link requirement in surrogacy‚ declaring it unconstitutional.
Judge Anneli Basson said the case raised “difficult legal and ethical questions. [The dispute] raises complex and emotional issues that have a fundamental effect on many individuals who struggle with the devastating effects of infertility.”
She said the genetic-link requirement violated human rights on a “very personal and intimate level. It effectively puts persons’ personal lives and family building plans on hold. This situation begs immediate relief.”
The case was brought against Minister of Social Development Bathabile Dlamini‚ who opposed the application but failed to present evidence to the court in time.