AB and Another v Minister of Social Development

The first applicant, AB, is a single woman who is permanently and irreversibly infertile: she cannot contribute her own gametes and cannot carry a pregnancy to term. After numerous failed IVF cycles using donor gametes, she sought to become a parent through a surrogate motherhood agreement using both donor ova and donor sperm. Section 294 of the Children’s Act 38 of 2005 requires that, for a valid surrogacy agreement, at least one commissioning parent must contribute a gamete. Because AB could contribute none, she was legally barred from entering into a surrogacy agreement. AB and the Surrogacy Advisory Group challenged section 294 in the High Court, which declared it unconstitutional. The Minister of Social Development appealed to the Constitutional Court for confirmation of invalidity.

The Constitutional Court refused to confirm the High Court’s declaration of constitutional invalidity. The Minister’s appeal was upheld. Section 294 of the Children’s Act was declared constitutionally valid. The High Court’s costs order in favour of the applicants was confirmed, and the Minister was ordered to pay the applicants’ costs in the Constitutional Court.

This case is a leading authority on the constitutionality of South Africa’s surrogacy regime. It affirms Parliament’s power to regulate assisted reproduction strictly and confirms that surrogacy is not a general solution to infertility but a narrowly tailored legal mechanism centred on the best interests of the child. The judgment clarifies the constitutional status of reproductive autonomy and underscores that children’s interests, including genetic origin and identity, may justify limitations on adult reproductive choices.