A judicial perspective of the genetic link requirement for the confirmation of the surrogate motherhood agreement

Abstract

This study investigates the approaches taken by courts to determine the constitutional validity of section 294. The case of AB and Another v Minister of Social Development (Centre for Child Law as Amicus Curiae) if the main focus of the inquiry. Section 294 of the Children's Act was declared unconstitutional by the High Court in AB and Another v Minister of Social Development and another, this declaration of constitutional invalidity triggered the confirmatory jurisdiction of the Constitutional Court. The case was accordingly referred to the Constitutional Court for confirmation. The Constitutional Court was split with a ratio of 7:5 with the majority finding section 294 of the Children's Act consistent with the Constitution, whereas the minority concurred with the High Court's decision. These two approaches necessitated this inquiry whose aim is to investigate the two courts' approaches in interpreting section 294 and the extend to which children's rights influenced the Constitutional Court's judgement.