Section 294 of the Children’s Act 38 of 2005 provides that a surrogate motherhood agreement will not be valid unless the child born as the result of the agreement is genetically related to at least one of the commissioning parents. This provision was upheld by a majority of the Constitutional Court in AB v Minister of Social Development. I argue in this article that the majority overlooked some troubling constitutional issues. First, I argue that the provision infringes the equality right in s 9(1) of the Constitution, either because the distinction it draws is not rationally connected to the legitimate goal of protecting the best interests of children, or because it serves an illegitimate goal, that of forcibly imposing a contested bionormative conception of the family on people who reasonably disagree. Secondly, I argue that s 294 unfairly discriminates against commissioning parents who would like to enter into a surrogacy agreement but cannot contribute genetic material, thereby infringing s 9(3) of the Constitution. I argue that the AB majority failed to recognise these flaws in the provision because (i) it misidentified the purpose of s 294 and (ii) was too ready to ascribe the predicament of commissioning parents barred from entering into a surrogacy agreement to medical conditions and personal preferences rather than legal discrimination. Its understanding of the constitutional right to equality is accordingly unattractive.
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- genetic link
- right to know genetic origins
- right to equality
- unfair discrimination