Abstract
Section 294 of the Children's Act 38 of 2005 currently only permits commissioning parents to engage in surrogacy arrangements in instances where they are able to provide a genetic link to their future offspring. This provision then excludes other infertile individuals, who due to the cause of their infertility are unable to provide genetic material, from engaging in surrogacy as a means of becoming parents, often at times when adoption as an alternative is not available to them. This article critically analyses section 294 and the issues it raises. In particular, it considers the constitutionality of section 294 and the remedies available to infertile parties who cannot meet the genetic link requirement. This article further considers the importance of genetic links in acquiring a child and the alternatives thereto, and concludes by proposing a way forward.
Highlights
During the past few decades, infertility[1] has been on the rise. This reality has been confirmed by a recent study conducted by the World Health Organisation (WHO), which indicates that infertility currently affects 10.5% of individuals globally.[2]
The implication of this is that 10.5% of the world's population may never be able to procreate;[4] that is, unless recourse is had to assisted reproductive technology (ART)[5] to facilitate reproduction
It is worth noting the recent cases of Mennesson v France and Labassee v France[60] decided by the European Court of Human Rights (ECHR), where the court was called upon to determine whether French law which failed to recognise the legal relationship between the commissioning parents and the offspring born from surrogacy arrangements concluded abroad amounted to violations of their rights to respect for private and family life and their right to equality
Summary
During the past few decades, infertility[1] has been on the rise. This reality has been confirmed by a recent study conducted by the World Health Organisation (WHO), which indicates that infertility currently affects 10.5% of individuals globally.[2]. Surrogacy makes use of a gestational carrier as a conduit for reproduction This process itself and its reliance on a third party in the reproductive process have been met with severe criticism for a number of reasons.[6] Despite the opposition to the practice, individuals who pursue this option do so either because their attempts at adoption – a proposed alternative way of acquiring a child – have proved. In an era where infertility is more common,[15] this section raises a number of concerns: some constitutional[16] and others ethical and moral The response to this criticism has been a suggestion that the parties concerned consider adoption as an alternative.[17] This suggestion assumes that adoption is an alternative to surrogacy.
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