Guest 1 on the line: Uyanda Maboea, Candidate Attorney at Adams & Adams

Legal conversations: Unnecessary hindrance to parenthood.

South Africa protects the rights of minorities or previously marginalised groups through legislative and constitutional means. The right to equality is constitutionally entrenched. Section 294 of the Children’s Act 38 of 2005[1] (hereinafter referred to as “the Act”) prevents persons who are infertile and unable to donate gametes for the purpose of a surrogacy agreement, from entering into said agreement. A genetic link to at least one of the commissioning parents is a requirement for a valid surrogacy agreement. A brief explanation of the most recent decision in this area of law, being the case of AB and Another v Minister of Social Development,[2]  follows. What are the repercussions that follow the apex court’s decision in AB? Do prospective parents in surrogacy agreements, who are unable to have a child of their own and unable to contribute genetically, have any remedies?

An analysis of section 294

This section provides for a valid surrogacy agreement in the following instances: ie) Both commissioning parents provide their gametes; ii) If one of the commissioning parents is unable, for any medical or biological reasons, to provide a gamete, then the other commissioning parent needs to provide a gamete; iii) If the commissioning parent is a single person, they must provide their own gamete.