Does the Genetic Link Requirement in Surrogacy Contracts Serve a Rational Purpose? KB v Minister of Social Development [2023] ZAMPMBHC 12; 2024 (5) SA 30 (SCA)

Section 294 of the South African Children’s Act 38 of 2005 (Children’s Act) states that a surrogate motherhood agreement is invalid unless the conception of the child to be born is brought about by using the gametes of either both commissioning parents or, if that is impossible because of biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person. Chapter 19 of the Children’s Act contains the legislation on surrogacy applicable to South Africa and this legislation followed the South African Law Commission’s (SALC) proposals that surrogate motherhood agreements should be allowed only if there is a genetic link between at least one commissioning parent and the child born from such surrogacy. As a result of this Commission, a Parliamentary Ad Hoc Committee was formed in 1994. In its 1999 report, the Committee recommended that intending or commissioning parent (s) be required to contribute at least one of their own gametes in the case of surrogacy. One of the reasons provided for recommending the genetic link requirement was that it was believed to be in the best interest of such a child that the gametes of at least one of the commissioning parents should be used as this would “restrict undesirable practices such as shopping around with a view to creating children with particular characteristics”. The SALC also contended that if both the male and the female gametes used in the creation of the embryo were donor gametes, it would result in a similar situation to adoption, as the child or children would not be genetically linked to the commissioning parent or parents and that, in both partial and full surrogacy, it should be a pre-condition that the child or children should always be genetically linked to at least one of the commissioning parents. The genetic link requirement was then incorporated in section 294 of the Children’s Act.