Surrogacy applications fails on technical points

Published May 24, 2024


The Non Profit Organisation the Surrogacy Advisory Group turned to the Gauteng High Court, Pretoria, to seek an order declaring certain regulations relating to artificial fertilisation of persons unconstitutional.

It is attacking regulations of the National Health Act which deal with the control over artificial fertilisation, embryo transfer, storage and destroying zygotes and embryos.

These regulations are specifically aimed at medical practitioners specialising in gynaecology with training in reproductive medicine, medical scientists, and medical and clinical technologists with training in reproductive biology and related procedures.

The Surrogacy Group said they are raising this application, in the public interest.

It told the court that this application concerns in vitro fertilisation (IVF) for intended parents who are considering surrogacy, but before the court has confirmed their surrogate motherhood agreement.

The group contended that a time co-ordination problem between two scarce resources - a suitable egg donor and a surrogate mother - can be solved by creating embryo’s and cryopreserving them for later use.

Another concern the group raised is that the impugned provision confines the time when the process of IVF can take place, namely when there is a “specific recipient”.

The actual concern of the timing co-ordination issue and what presently happens in practice was confirmed by the evidence of a medical biological scientist in the fertility field. She said to solve the timing issue, embryo freezing would be a preferred route of treatment.

She further stated that it is not uncommon for commissioning parents in a surrogate motherhood agreement confirmation application to already cryopreserved embryos stored at a fertility clinic. This is before a gestational surrogate has been identified.

The Surrogacy Group contends that the application concerns IVF for intended parents who are considering surrogacy, before the court has confirmed their surrogate motherhood agreement.

The Minister argued that the Minister of Social Development who is responsible for social development referred to in the Children’s Act must be joined for comment, having a substantial interest in the outcome.

The Minister also raised the point that the Surrogacy Group lacks standing to bring this application. Judge Linda Retief said a court must consider whether a party is genuinely acting in the public interest.

She said this case lacks sufficient evidence to justify the outcome that the Surrogacy Group as a NPC is bringing this application genuinely acting in the public interest.

The lack of standing argument must succeed. In the context of the multicentric legislation which forms an interrelated and independent legislative framework regulating surrogacy, the non-joinder point too, must succeed, the judge said in turning down the application.

Pretoria News

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