Litigation: Law blocks infertile man's surrogacy attempt

A single, infertile man who desperately wants a child has had his wishes dashed by the KZN High Court (Pietermaritzburg). A Sunday Times report notes that after selecting a father for his child from the US sperm bank, Fairfax Cryobank, he faced his biggest problem: a stipulation in the Children's Act that a single man can father a child with a surrogate only if his own sperm is used. The man – a lawyer identified as DW – provided his own interpretation of the law to the High Court and asked it to give him the go-ahead. However, a recent judgment ended his dream. ‘I empathize with the applicant's desire to have a child and would have helped him if I thought I could,’ said Judge Johan Ploos van Amstel. ‘Regrettably, I do not think I can.’ The would-be father argued that a ‘purposive interpretation’ of the law ‘seeks to ensure that the child will in due course know its genetic origin’, said Ploos van Amstel. ‘He accordingly wants the court to declare that he is entitled to use sperm from a donor ... who has agreed to his identity being disclosed to the child when it reaches 18 years of age. The applicant says this differs from the practice in SA, where sperm banks only offer anonymous donors. He submitted that in those circumstances it does not matter that the child will not have a genetic link with the commissioning parent, because the child's genetic origin can be made known to it at the appropriate time. The applicant accepts that such an interpretation is contrary to the express wording of the section.’

DW referred to a 2017 Constitutional Court judgment that said the surrogacy law's ‘rational purpose’ was to ‘create a bond between the child and the commissioning parent or parents, which is designed to protect the best interests of the child to be born so that it has a genetic link with its parent(s)’. Ploos van Amstel, however, said the wording of the law was clear: ‘No surrogate agreement is valid unless the conception of the child ... is to be effected, where the commissioning parent is a single person, by the gamete (sperm or egg) of that person. The wording is not capable of another possible meaning.’ DW reportedly told the Sunday Times: ‘The genetic link requirement for surrogacy is a cruel piece of legislation. It shatters infertile people’s dreams of parenthood. It is unbelievable that such a provision can still be part of our law.’

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