(‘friend of the court’)
3 April 2023
Case report: Surrogacy Advisory Group v Minister of Health (50683/2020)
The Surrogacy Advisory Group (SAG) has brought an application to the High Court of South Africa in the public interest. The respondent in the matter is the Minister of Health. The application concerns the impact of current in vitro fertilisation (IVF) regulations on potential parents considering surrogacy, but before the surrogate motherhood agreement is confirmed by the court.
Regulation 10(2)(a) of the Regulations relating to Artificial Fertilisation of Persons provides that a ‘competent person shall not effect in vitro fertilisation except for embryo transfer to a specific recipient’. The court in Ex Parte MCM held that a narrow interpretation of the provision is correct. The narrow interpretation requires that, as a precondition for IVF, a recipient must be exactly named.
This means that prospective commissioning parents may not access IVF services prior to securing a surrogate mother. The SAG is of the opinion that this violates the rights of pregnancy infertile persons. There are good clinical, financial and emotional reasons why commissioning parents may need access to IVF prior to finding a surrogate mother.
The SAG is challenging Regulation 10(2)(a) on the constitutional grounds that it results in unfair discrimination, and infringes on the rights to dignity, privacy and healthcare of infertile persons. The SAG seeks to have the provision declared unconstitutional and invalid.
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