Is the Writing on the Wall for the Genetic Link Requirement in Surrogacy Agreements?

Abstract

For a valid surrogate motherhood agreement, section 294 of the Children's Act 38 of 2005 provides that the child born of the surrogacy arrangement must be conceived with the gamete of at least one of the commissioning parents. This ensures that a genetic link exists between a commissioning parent and the resultant child. In 2015, in the case of AB v Minister of Social Development 2016 2 SA 27 (GP), the constitutionality of the impugned provision was successfully challenged in the High Court; however, the applicant failed to convince the majority in the Constitutional Court (AB v Minister of Social Development 2017 3 SA 570 (CC)) that the removal of the genetic-link requirement would be in the resultant child's best interests. In 2023 another "double-donor" surrogacy matter is set to be decided by the High Court. The applicant's situation raises the question of whether the genetic-link requirement between commissioning parents and the resultant child should be extended to include a "sibling link". This would be applicable in situations where parents will lack a genetic link with the resultant child, but the child will still share a genetic link with an existing sibling. This article assesses the merits of the "sibling link" argument by considering the latest psychological evidence. This evidence confirms that donor-conceived surrogate children are well-adjusted and exhibit high self-esteem, despite lacking a biological and gestational link to their parents. It is argued that the reading in of a "sibling clause" into section 294 may be too narrow, and instead a reading in of a sentence that will allow the court "on good cause shown" to dispose of the genetic link requirement should be preferred.