Authored By: Promise
Regenesys Education
Introduction
The advent of Assisted Reproductive Technology (ART) has fundamentally reshaped family law, disrupting traditional common-law precepts that historically anchored parentage in biological contribution and childbirth (mater semper certa est). Modern surrogacy arrangements introduce a paradigm shift by placing intent, the deliberate decision and legal commitment to conceive, bear and raise a child, at the heart of parental rights. Consequently, the legal landscape is caught in an ongoing tension between traditional biological determinism and modern intentional parenthood.
In South African law, Chapter 19 of the Children’s Act 38 of 2005 establishes a framework for surrogate motherhood agreements, requiring High Court confirmation prior to conception.1 While the Act recognizes the primacy of intended parents upon birth under Section 297,2 it simultaneously enforces a strict biological nexus through Section 294, which mandates a genetic link with at least one commissioning parent.3 This statutory compromise was famously affirmed by the Constitutional Court in AB v Minister of Social Development.4
This article examines the legal interplay between intentional and biological parenthood in South African jurisprudence. By analyzing statutory requirements, key judicial rulings and constitutional rights, specifically equality,5 dignity6 and the best interests of the child,7 it critically evaluates whether current laws strike an equitable balance between biological realities and reproductive intention.
The Statutory Framework: Balancing Intent and Genetic Nexus
Chapter 19 of the Children’s Act 38 of 2005 serves as the primary legislative instrument regulating surrogacy in South Africa. Designed to prevent commercial exploitation while providing a formal legal pathway for infertile individuals, the Act pivots on judicial oversight.
Under Section 292, a surrogate motherhood agreement is legally invalid unless confirmed by the High Court prior to the artificial insemination of the surrogate mother.8 This pre-conception judicial clearance ensures that all statutory requirements are satisfied before a child is conceived.
Once confirmed, Section 297 outlines the legal consequences of the agreement. Upon birth, the child is recognized in law as the legitimate child of the commissioning parents, and all parental responsibilities and rights vest exclusively in them.9 Concurrently, the surrogate mother and her spouse are stripped of parental rights, and the surrogate retains no right to contact the child unless stipulated in the confirmed agreement.10 Through Section 297, South African law explicitly recognizes intentional parenthood, overriding the common-law presumption of mater semper certa est.
However, this recognition of intent is not absolute. Section 294 introduces a pivotal statutory limitation: it mandates that no court may confirm a surrogacy agreement unless the conception involves the gametes of at least one commissioning parent.11 Consequently, where both commissioning parents are permanently infertile and unable to contribute either ova or sperm, surrogacy is legally precluded. In such cases, the law refuses to recognize pure intention, insisting upon a mandatory biological foundation.
Judicial Analysis: The Battle for Primacy in AB v Minister of Social Development
The constitutional validity of Section 294 was directly challenged in AB v Minister of Social Development.12 The applicant, who was genetically incapable of producing ova and unable to carry a pregnancy, argued that the genetic link requirement unconstitutionally infringed upon her rights to equality,13 human dignity,14 bodily autonomy15 and access to healthcare.16 She contended that the law unjustly discriminated against double-infertile individuals whose only route to parenthood was through donor gametes combined with a surrogate.
In a landmark majority decision delivered by Khampepe J, the Constitutional Court upheld the validity of Section 294. The majority reasoned that the primary purpose of the genetic link requirement is to safeguard the best interests of the child under Section 28(2) of the Constitution.17 The Court held that establishing a biological origin is crucial for a child’s identity, psychological well-being and self-knowledge. Furthermore, the majority expressed concern that removing the genetic link requirement would create a commercial market for donor gametes and surrogacy, effectively turning surrogate mothers into mere gestational instruments for hire.
Conversely, the minority judgment, authored by Froneman J, presented a compelling defense of intentional parenthood. The minority argued that Section 294 arbitrarily excludes double-infertile persons based purely on biological constraints, violating their fundamental rights to dignity and reproductive choice. Froneman J emphasized that parental capability and commitment are defined by emotional readiness, care and legal responsibility rather than shared DNA.
Synthesis and Practical Implications
The ruling in AB cements a clear legal hierarchy in South African law: while intent is the engine that initiates surrogacy, biology remains its non-negotiable gatekeeper. This dual requirement leaves double-infertile individuals with adoption as their sole legal recourse, despite the distinct legal and practical realities of adoption compared to surrogacy.
For legal practitioners and prospective parents, navigating Chapter 19 requires careful balance, ensuring strict statutory adherence to biological prerequisites while formalizing intended parental rights through a meticulous High Court application.
Conclusion
This article has examined the legal tension between intentional and biological parenthood within South African surrogacy law, focusing primarily on the regulatory architecture of Chapter 19 of the Children’s Act 38 of 2005. Section 292 establishes mandatory pre-conception judicial oversight, ensuring that surrogate motherhood agreements are thoroughly vetted by the High Court before artificial insemination occurs. Upon birth, Section 297 validates intentional parenthood by automatically vesting full parental responsibilities and rights in the commissioning parents while terminating those of the surrogate mother.
However, as the statutory analysis demonstrates, Section 294 imposes a strict limitation by requiring a genetic link between the child and at least one commissioning parent. The Constitutional Court’s ruling in AB v Minister of Social Development affirmed this requirement, with the majority prioritizing biological origin and the best interests of the child under Section 28(2) of the Constitution, while the minority strongly advocated for the recognition of pure reproductive intent.
In light of this analysis, the central thesis of this article is confirmed: while South African law has made progressive strides by recognizing intended parenthood as the primary driver of surrogacy agreements, biology remains an immutable legal gatekeeper. By elevating the genetic link requirement above pure intention, the current legal framework creates a rigid hierarchy. It grants reproductive autonomy to individuals who can contribute at least one gamete while withholding it from double-infertile prospective parents, thereby leaving a distinct class of individuals dependent solely on adoption.
To address these legal friction points, future legislative development should consider the following targeted reforms.
Legislative Reform of Section 294
Parliament should re-examine Section 294 of the Children’s Act to create a narrow statutory exception for double-infertile individuals. Subject to rigorous judicial oversight and strict psychological evaluation, High Courts should be granted discretionary authority to confirm surrogacy agreements involving donor gametes where medical evidence conclusively proves double infertility.
Enhanced Guidelines for High Courts
Drawing from the precedent set in Ex parte WH,18 the judiciary should establish standardized practice directives for Section 292 confirmation applications. These directives should mandate pre-conception counselling focusing on identity formation for children born via ART, ensuring that the best interests of the child are protected regardless of biological origin.
Comprehensive Policy Framework on ART
Parliament and the Department of Social Development should formulate a unified national policy on Assisted Reproductive Technology. This framework must harmonize adoption laws, surrogacy regulations and donor gamete registry protocols, ensuring equitable access to parenthood while maintaining robust safeguards against economic exploitation and commercialization.
By enacting these legislative and judicial adjustments, South Africa can preserve the core integrity of its surrogacy safeguards while aligning its legal definitions of parentage with the evolving realities of modern family formation.
Footnote(S):
1 Section 292 of the Children’s Act 38 of 2005
2 Section 297(1)(a) of the Children’s Act 38 of 2005
3 Section 294 of the Children’s Act 38 of 2005
4 AB and Another v Minister of Social Development [2016] ZACC 43;2017 (3) SA 570 (CC)
5 Section 9 of the Constitution of the Republic of South Africa,1996
6 Section 10 of the Constitution of the Republic of South Africa,1996
7 Section 28(2) of the Constitution of the Republic of South Africa,1996
8 Section 29(1) ( e) of the Children’s Act 38 of 2005
9 Section 297(1) (a)of the Children’s Act 38 of 2005
10 Section 297 (1) ( c) – (d) of the Children’s Act 38 of 2005
11 Section 294 of the Children’s Act 38 of 2005
12 AB and Another v Minister of Social Development [2016] ZACC 43;2017 (3) SA 570 (CC)
13 Section 9 of the Constitution of the Republic of South Africa,1996
14 Section 10 of the Constitution of the Republic of South Africa,1996
15 Section 12 (2) (a) of the Constitution of the Republic of South Africa,1996
16 Section 27 (1) (a) of the Constitution of the Republic of South Africa,1996
17 Section 28(2) of the Constitution of the Republic of South Africa,1996
18 Ex Parte WH and Others 2013 (3) SA 241 (GNP)
Reference(S):
Legislation
Constitution of the Republic of South Africa, 1996
- Section 9 (Right to Equality)
- Section 10 (Right to Human Dignity)
- Section 12(2) (Freedom and Security of the Person: Reproductive Rights)
- Section 27(1)(a) (Health Care Services)
- Section 28(2) (Best Interests of the Child)
Children’s Act 38 of 2005
- Chapter 19: Surrogate Motherhood Agreements (Sections 292–303)
- Section 292 (Requirements for Confirmation by High Court)
- Section 294 (Genetic Link Requirement)
- Section 297 (Effect of Surrogate Motherhood Agreement on Status of Child)
Case Law
- AB and Another v Minister of Social Development [2016] ZACC 43; 2017 (3) SA 570 (CC)
- Ex Parte WH and Others 2013 (3) SA 241 (GNP)
- VJV and RT v Minister of Social Development and Others [2023] ZACC 21
Books and Academic Articles
- Boezaart, T. (ed), Child Law in South Africa (2nd edn, Juta 2017)
- Carnelley, M., ‘Surrogate Motherhood Agreements in South Africa’ (2012) 24(2) South African Mercantile Law Journal 178–188
- Louw, A.S., ‘Surrogacy in South Africa: Should the Genetic Link Requirement be Retained?’ (2013) 46(3) De Jure 564–576
- Pillary, R., ‘Surrogacy and the Constitutional Protection of Children’s Rights in South Africa’ (2020) 36(1) South African Journal on Human Rights 45–68
- Sloth-Nielsen, J., ‘The Child’s Right to Identity in the Context of Assisted Reproductive Technologies: A South African Perspective’ (2018) 32(2) International Journal of Law, Policy and the Family 112–129
International Instruments and Policy Documents
- South African Law Reform Commission (SALRC), Report on Surrogate Motherhood (Project 65, 1992)
- United Nations Convention on the Rights of the Child (UNCRC), 1989 (Article 7: Right to identity and knowledge of biological origins)
