Back to the future: in light of present - day research, would AB v Minister of Social Development have been decided differently?

Abstract

This study investigates whether the case of AB v Minister of Social Development would be decided differently in 2020. The AB case was heard in 2015 and revolved around the ‘no double- donor’ requirement, which is a condition for a valid surrogate motherhood agreement. This prerequisite, contained in section 294 of the Children’s Act, excludes those who are ‘pregnancy’ and ‘conception’ infertile from accessing surrogacy as a means to have a child – a limitation justified as being in the resultant child’s best interests. The empirical studies in 2015, which investigated children up to the age of ten, cast doubt on the established belief in the importance of genetic relatedness for the positive well-being of children. Consequently, the constitutionality of the impugned provision was successfully challenged in the High Court; however, the applicants failed to convince the majority in the Constitutional Court, who rejected the empirical findings, fearing psychological harm would result in children who lacked certainty regarding their genetic origins. The research in 2015 could not conclusively respond to this concern as it was clearly deficient in examining adolescence – the key stage in a child’s identity formation. Since then, the best available empirical research includes the adjustment of adolescents – and the results now confirm that, despite lacking a biological and gestational link to their parents, donor-conceived surrogate children are well-adjusted and exhibit high selfesteem. The new evidence shows the fears of the majority to be unfounded. In the absence of a rational link between section 294 and the child’s best interests, the Court should declare the impugned provision unconstitutional. This study clearly shows that the no-double-donor requirement of section 294 fails to fulfil a legitimate government purpose. Nevertheless, the remaining regulations are not adequate to provide the necessary clarity nor the safeguards to protect the interests of all parties should the impugned provision be struck down. New regulations will need to be fashioned which are better suited to the regulation of double-donor surrogacy, such as permitting it only in the case of full surrogacy. These decisions are undeniably policy choices, which must be left to the Legislature.