Surrogate motherhood and scaremongering: Is South Africa entering an age of post-truth jurisprudence?

November 1st, 2018
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By Dr Donrich Thaldar

In world history, 2016 was the year of the Brexit referendum in the United Kingdom and the election of President Donald Trump in the United States. In South African legal history, 2016 was the year of the Constitutional Court’s (CC) judgment in AB and Another v Minister of Social Development 2017 (3) SA 570 (CC). Aptly, the Oxford Dictionary’s word of the year for 2016 is ‘post-truth’ defined as ‘relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief’ (https://en.oxforddictionaries.com, accessed 20-10-2017). This is just as applicable to the political debates around Brexit and the American election, as it is to the AB judgment. I explain this observation below.

AB was a constitutional challenge to s 294 of the Children’s Act 38 of 2005. This section requires that – in the context of surrogate motherhood – the gametes of the commissioning parents must be used for the conception of a child. If that is impossible for biological, medical or other valid reasons, the gamete of at least one of the commissioning parents, or, where the commissioning parent is a single person, the gamete of that person, must be used. The consequence is that commissioning parents cannot use donor gametes. Moreover, where both commissioning parents cannot contribute their own gametes for the conception of a child, or where the commissioning parent is a single person who cannot contribute their own gametes for the conception of a child – the commissioning parent(s) cannot use surrogacy.

AB, the first applicant, had a compelling personal story. She and her husband wanted to have a child, but were not successful. As such, they tried in vitro fertilisation (IVF). However, after two failed attempts, AB was advised that given that she was entering menopause, her eggs were not of sufficient quality. She and her husband then proceeded to make use of donor eggs. Another two IVF cycles later, AB’s marriage of 20 years ended in divorce. However, AB decided to forge ahead with IVF to have a child now with donor sperm. Her intense longing for a child resulted in 14 more IVF cycles – all ultimately unsuccessful. Eventually, a fertility specialist conducted certain tests that showed that AB suffered from a medical condition that would cause her to never be able to carry a pregnancy to term. Still undeterred, AB found a woman who was willing to act as AB’s surrogate mother. However, given that AB could not contribute her own eggs, AB’s attorney advised her that s 294 of the Children’s Act prohibits her from using surrogacy. According to AB’s founding affidavit, she received this advice with a mixture of ‘shock, sadness and bafflement’. In 2013, after first obtaining a comprehensive anonymity order – neither the minister, nor the CC justices knew AB’s true identity – AB launched a constitutional challenge to s 294 of the Children’s Act. She was joined by a non-profit organisation, the Surrogacy Advisory Group.

The applicants argued that s 294 infringes a number of enumerated rights – in particular the right to equality. This was based on the fact that AB, for most of the time that she was still attempting to become pregnant herself, used donor eggs and sperm – not her own eggs. This was completely legal. However, in the context of surrogacy, it was illegal for her to use donor eggs and sperm. If the first situation is legal, why then is the latter situation illegal? Remember that AB did not want to make use of surrogacy as a matter of convenience, but as a last resort – she clearly made a concerted effort to fall pregnant herself, but was eventually diagnosed as infertile. Also keep in mind that the surrogate mother was completely willing to become pregnant with a donor embryo on AB’s behalf.

The Minister of Social Development opposed AB’s application. The minister’s first main argument was that AB should simply adopt a child. There are two weaknesses in this argument that were highlighted by the applicants: First, adoption is not a realistic alternative in SA. AB is a white woman who wants a white child. However, given the scarcity of adoptable white babies, the likelihood of a single woman being selected by an adoption agency to adopt a white baby is close to zero. Second, adoption and surrogacy are two different legal concepts. While the surrogacy process is aimed at creating legal certainty for all parties involved – including the child – even before an attempt is made to implant an embryo in the surrogate mother, the adoption process only commences after the child’s birth and does not offer nearly the kind of legal certainty that the surrogacy process does.

However, it was the minister’s second main argument that became the focus of the CC hearing, namely that retaining s 294 – and hence ensuring that there is always a parent/child genetic link – is in the best interests of the child. The applicants’ position was that the best interests of the child do not require a parent/child genetic link: They pointed out that there are genetic parents who reject and abuse their genetic children, while there are many families without any genetic link, such as foster-care families and adoption families that have exemplary parent/child relationships. One may have one’s own private preferences, but should our law be allowed to prefer some kinds of families – families based on genetic links – above others?

Both sides filed expert opinions in support of their respective positions. The applicants obtained expert opinions from various psychologists, including the world’s leading researcher in the field of the psychology of donor-conceived children – who has conducted empirical studies on donor-conceived children. The psychological expert opinions all agreed that a child’s psychological wellbeing is not negatively affected by being donor-conceived.

The minister filed an expert opinion by an ethicist, who raised the following concern: If a child does not know their ‘genetic origins’ – the identity of their egg and sperm donors qua genetic parents – the child may experience genetic ‘bewilderment’; given that our law currently provides for donor anonymity, a donor-conceived child is destined to never know their genetic origins. This in turn may impact negatively on such a child’s self-worth and sense of identity. The problem with this argument, the applicants replied, is that it is pure speculation. Moreover, it is speculation in a specialised field of psychology, which fell beyond the expertise of the minister’s ethics expert.

The issue of knowing the identity of one’s egg or sperm donor is ethically controversial. In fact, the South African Law Reform Commission has, since the AB judgment, commenced with an investigation into whether a donor-conceived child should be given a ‘right’ to find out the identity of their donor. This would of course entail the end of the current regime of strict donor anonymity in South Africa. However, would the position of AB’s intended child have been any different if AB succeeded to fall pregnant herself, using donor eggs and donor sperm? The answer is clearly no. The intended child would not have had access to the identity of their donors in either of the two scenarios. The issue that was properly before the court was the constitutionality of s 294 – the requirement that a commissioning parent, like AB, must use their own genetic material – and not the issue of donor anonymity.

In their reply, the applicants filed further psychological expert opinions, which focused on the issue of identity and knowing one’s genetic origins. These psychological opinions can be summed up as follows: There are many factors in a child’s environment that can impact on the process of forming an identity; some factors may complicate this process to a greater or lesser degree, but do not necessarily diminish a child’s psychological wellbeing; being a donor-conceived child from anonymous donors can be one such factor. In other words, AB’s intended child might have a more complicated identity-forming process, but this will not necessarily cause the child any psychological harm. In fact, there are other factors in a child’s environment that can also complicate the process of forming an identity. What matters most from a child’s psychological perspective, is that they have loving and caring parents.

One may agree or disagree with the psychological evidence, but the evidence is the evidence. It is important to note that the minister and the Centre for Child Law (who joined as an amicus curiae in support of the minister’s position) both failed to place any psychological evidence before the court. Accordingly, the psychological evidence filed by the applicants stood uncontroverted. While the Gauteng Division of the High Court in Pretoria, which ruled in favour of AB, duly considered the evidence and founded its judgment on the evidence, the same cannot be said of the majority of the CC Bench. The majority of the CC held that it will not rely on any of the evidence properly before it, because in a matter of violation of rights, the CC must do its ‘own independent evaluation’. It is an established principle of our law that the court should not just accept experts’ conclusions, but rather critically engage with the experts’ opinions to evaluate, among others, whether the experts’ conclusions flow logically from the reasons provided. In the AB case, these reasons run into hundreds of pages. However, this is not what the majority of the CC did. They simply rejected all of this psychological evidence out of hand, without the slightest critical engagement. Effectively, this means that the CC judges are of opinion that when considering the psychology of donor-conceived children, they, as the judges, cannot possibly be assisted by the opinions of qualified psychologists who have studied the wellbeing of donor-conceived children over many years – both in clinical practice and through numerous empirical, scientifically-designed research studies.

Since Roman times, our system of law is one based on evidence. The rule of law demands that judgments be based on evidence properly before the court. Simply discarding evidence out of hand without even considering it, and then replacing it with the judges’ own conceptions, are antithetical to the rule of law – this is the rule of individual judges. Whether or not one agrees with the finding in the AB judgment, the way in which it was reached is deeply disconcerting. The objective facts were placed before the court, but were then unabashedly ignored. This is post-truth jurisprudence.

  • See also, DW Thaldar ‘Post-truth jurisprudence: The case of AB v Minister of Social Development’ (2018) 34 SAJHR (www.tandfonline.com). The first hundred people to click on the link will be able to view the article for free.

Dr Donrich Thaldar BLC LLB MPPS (UP) PhD (UCT) Post Grad Dip (Oxon) is a senior lecturer at University of KwaZulu-Natal in Durban.

This article was first published in De Rebus in 2018 (Nov) DR 28.

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