Post-truth jurisprudence: the case of AB v Minister of Social Development

Abstract

AB v Minister of Social Development centred on the application of the best interests of the child principle to surrogate motherhood and the use of donor gametes. Given the sensitive and emotional nature of the subject, AB was a litmus test for South Africa’s courts’ commitment to the rule of law. This article examines the evidence submitted by both sides in AB and shows that the content of the best interests of the child was clear and unambiguous from the evidence before the Court – even though it was contrary to traditional notions about the importance of genetic relatedness. While the Pretoria High Court relied on the evidence before it, the majority of the Constitutional Court disregarded the evidence and rather relied on traditional notions about the importance of genetic relatedness. This article concludes that, while the Pretoria High Court passed the litmus test, the majority of the Constitutional Court failed spectacularly.