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Friday, September 4, 2015

ConCourt to consider genetic link on surrogacy law

The Constitutional Court is set to consider whether the genetic-link requirement in surrogacy law should remain.

The requirement means that if one is unable to carry one's own child and similarly unable to donate either the egg or the sperm, then one is excluded from entering into a surrogacy agreement.

Earlier this month, the High Court in Pretoria found that the requirement is unconstitutional and invalid. This order must be confirmed by the Constitutional Court in the land before it can have any effect.

There is a strict confidentiality agreement in place to protect the identity of the woman at the centre of this case. It's said that not even the responding government minister knows who she is. The woman is said to be 55 years old and divorced.

After numerous failed attempts for an In Vitro Fertilization (IVF) it is reported that the only way she can become a mom is to use a surrogacy.

The Centre for Child Law made submissions as a friend of the court, largely in favour of retaining the genetic link requirement
During the hearing in the High Court, and in defence of the genetic-link requirement, the argument around designer babies was raised.

It is said that the requirement would block people from shopping around to create the perfect baby. Talking on behalf of the Surrogacy Advisory Group, Robynne Friedman rejects the argument.

“Parents are not choosing a super baby they are choosing the characteristics that will closely resemble themselves. They are choosing characteristics with a donor egg that will match their physical and intellectual levels, they do not look for super sportsman or super scientist they only want the baby to look like them,”says Friedman.

The Centre for Child Law made submissions as a friend of the court, largely in favour of retaining the genetic link requirement. The Centre's Karabo Ozah says this would ultimately be in the child's best interest.

They suggest that Parliament be allowed to reconsider the law, with a view of creating possible exceptions to the rule,such as using the donor egg/sperm of a blood relative. Friedman argues that genes play no role in family bonding.

Friedmn says, “I have two adopted children who are not genetically related to me they don’t look remotely like me but I am completely bonded to them and they are completely bonded to me and we're a family.”

In opposing the application, the Social Development Minister relied heavily on the evidence of Ethics by Professor, Donna Van Bogaert. But lawyers for the Surrogacy Advocacy Group tore this expert to shreds.

They accused her, of among other things, perverting and misrepresenting the research findings of others. They highlighted several inconsistencies in her work, calling her biased and asking that her opinions be disregarded by the court.

Ultimately, the High Court slapped the minister with a punitive cost order after finding that she displayed a "flagrant disregard" for her constitutional duty.

This is after the Minister dragged her feet on submitting the "adoption report”,which largely supported AB's position that adoption is not a viable option.

When contacted for comment, the Department said they are still studying the judgment and would revert in due course. The Constitutional Court has yet to indicate when it will hear arguments.