AB and Another v Minister of Social Development

AB, a 55-year-old single woman, is both conception infertile (unable to contribute her own gamete) and pregnancy infertile (unable to carry a pregnancy to term). Between 2001 and 2011, she underwent 18 unsuccessful IVF cycles. AB wished to enter into a surrogacy agreement to have a child but was informed that section 294 of the Children's Act 38 of 2005 prevented her from doing so because it requires at least one commissioning parent to contribute a gamete. She, together with the Surrogacy Advisory Group (second applicant), challenged the constitutional validity of section 294 in the High Court on grounds that it violated the rule of law and several constitutional rights, including equality, human dignity, reproductive autonomy, privacy, and access to health care. The High Court declared section 294 unconstitutional and invalid. The Centre for Child Law participated as amicus curiae.

• Whether section 294 of the Children's Act irrationally differentiates in violation of section 9(1) of the Constitution
• Whether section 294 unfairly discriminates against persons who are both conception and pregnancy infertile in violation of section 9(3) of the Constitution
• Whether section 294 violates the right to psychological integrity and the right to make decisions concerning reproduction in terms of section 12(2)(a) of the Constitution
• Whether section 294 violates the right to human dignity in terms of section 10 of the Constitution
• Whether section 294 violates the right to privacy in terms of section 14 of the Constitution
• Whether section 294 violates the right to access to reproductive health care in terms of section 27 of the Constitution
• If rights are limited, whether the limitation is reasonable and justifiable under section 36 of the Constitution

The appeal by the Minister of Social Development was upheld. The High Court's order declaring section 294 of the Children's Act unconstitutional and invalid was not confirmed. The High Court's costs order in favour of the applicants (punitive costs on attorney-client scale) was confirmed. The respondent (Minister) was ordered to pay the applicants' costs in the Constitutional Court, including costs of two counsel.

Section 294 of the Children's Act, which requires at least one commissioning parent in a surrogacy agreement to contribute a gamete for conception, does not violate the Constitution. The provision: (1) is rationally connected to the legitimate governmental purpose of protecting the best interests of children by ensuring a genetic link between the child and at least one commissioning parent; (2) does not constitute unfair discrimination because the differentiation is based on biological capacity to contribute gametes rather than on inherent personal attributes, and affected persons retain alternative options; (3) does not limit the right to psychological integrity in section 12(2)(a) because that right protects decisions concerning one's own body and reproduction, not decisions involving another person's body (the surrogate mother); and (4) does not limit the rights to dignity, privacy, or access to health care. The legislative choice to regulate surrogacy differently from IVF is justifiable given their different objectives and contexts under different statutes (the Children's Act vs the National Health Act).

The minority judgment (Khampepe J) made several important observations: (1) Autonomy, while not a freestanding constitutional right, is a value that informs the interpretation of specific rights, particularly freedom rights. (2) Section 12(2) of the Constitution introduced new, freestanding freedom rights distinct from the general residual freedom protected under section 12(1). (3) The value of freedom in the Constitution recognizes each person's capacity to assess their socially-rooted situations and make decisions accordingly, which is central to human flourishing. (4) Advances in reproductive technology expand the ambit of reproductive rights by making previously impossible reproductive choices feasible. (5) The Constitution requires respect for diverse family formations and should not entrench any particular form of family as exclusively valid. (6) Adoption and surrogacy are fundamentally different processes that create different types of parent-child relationships, despite both potentially resulting in children without genetic links to parents. (7) Section 41(2) of the Children's Act, which prevents disclosure of donor identity, contradicts any purported purpose of section 294 to ensure children know their genetic origins. The minority would have found violations of sections 12(2)(a) and 9, but would have suspended the declaration of invalidity for 18 months to allow Parliament to remedy the legislative scheme.

This case represents the Constitutional Court's first substantive engagement with surrogacy regulation and the scope of reproductive rights under section 12(2)(a) of the Constitution. It confirms that: (1) The right to make decisions concerning reproduction in section 12(2)(a) relates to decisions about one's own body, not decisions involving another person's body. (2) The best interests of the child remain paramount in matters concerning children, including in surrogacy arrangements. (3) Legislative differentiation between different reproductive technologies (IVF vs surrogacy) is permissible where rationally connected to different legislative objectives. (4) Infertility-based limitations on access to surrogacy do not constitute unfair discrimination where the disqualification stems from biological inability rather than inherent personal attributes, and where alternative options exist. (5) Courts should be cautious about interfering with complex legislative policy choices in polycentric matters. The case clarifies the boundaries of reproductive autonomy rights and reinforces that the Constitution does not guarantee access to any particular reproductive pathway, even where modern technology makes it possible.