The Constitutional Court Should Make a Greater Effort to Tackle Prejudice Against Infertile People

The School of Law at the University of KwaZulu-Natal is housed in a beautiful old building on the Durban campus. To enter this building, one needs to climb a flight of stairs. For most people, this is no problem, however, not all people are able to climb stairs. People who have lost the use of their legs and use wheelchairs cannot climb stairs like able-bodied people. They need a ramp. I am happy to say that our School of Law’s building indeed has a ramp. So, it is accessible for disabled people. Obviously, this is a good thing. Only an extremely prejudiced person would argue that making the building accessible to disabled people is somehow bad.

Let’s now consider another kind of disability – a disability that, unfortunately, is the subject of much social stigma and misunderstanding: infertility. For no fault of their own, some men and women cannot have children through intercourse. There can be many medical reasons for infertility. People who suffer from infertility are often desperate to have children. This is understandable, as having children is central to most people’s life plans. Children provide meaning to our lives. So, what is the solution? Fertility clinics offer various kinds of medically assisted reproduction to infertile people. A well-known kind of medically assisted reproduction is where the skilled healthcare professionals at a fertility clinic use a man’s sperm cells and a woman’s eggs to create embryos that can then be transferred to a woman’s uterus. This is called in vitro fertilisation (IVF).

Now let me relate the story of a brave and determined woman. To protect her identity, I will refer to her as just “Amy”. Amy and her husband tried to have a child, but Amy could not fall pregnant. So, they visited a fertility clinic, which suggested IVF. Amy and her husband’s hopes were high – would they now get the child they had dreamed of? However, after two unsuccessful IVF attempts, the doctor advised Amy that her eggs were not viable. If she wanted to have a child, she would have to use donor eggs – that is, viable eggs donated by another woman.

Amy thought about this long and hard. Eventually, she decided that she wanted to proceed by using donor eggs. She felt that she would love the child – irrespective of whether the child was genetically related to her or not. She and her husband spent weeks and eventually months looking for a suitable egg donor on egg donation websites that were suggested by the clinic. Eventually they found an anonymous egg donor that resembled Amy very closely, and who shared many of her personality traits. Using eggs from this anonymous donor, the IVF treatment then started anew. Again, Amy’s and her husband’s hopes were high – would they this time get the child that they had dreamed of?

After two IVF attempts with the donor eggs, Amy was still not pregnant. And then a further tragedy struck: her husband divorced her. She was devastated, but she slowly rebuilt her life on her own. The one dream that she continued to cling to – that gave her hope and meaning – was that she would someday, with the help of medical technology, become a mother.

After the divorce, she decided to continue with IVF treatment. Only this time, she would use donor eggs and donor sperm. She was determined to become a mother. Over a number of years, she underwent not just two, or four, or six IVF attempts, but a further 14. Sometimes the embryo successfully implanted in her womb and started growing. ‘This time I will become a mother!’ she thought with lots of hope, but each time, the pregnancy ended with an early miscarriage. Eventually, Amy’s doctors did more tests and diagnosed her with an illness that affected her uterus and caused the miscarriages. It was an illness that, like so many others, cannot yet be cured. The doctors advised her that she would never be able to successfully carry a pregnancy herself.

The doctors suggested a possible solution: ‘Why don’t you make use of a surrogate mother? We already have the embryos ready – they are healthy and viable. If you can get a woman who is willing to carry the pregnancy on your behalf, she can act as your surrogate mother.’ Amy was a resourceful woman, and it was not long before she was introduced to Cindy, a woman who already had children of her own, and who offered to act as a surrogate mother for her. A solution was in sight!

Amy would however run into yet another problem – this time a legal one. According to the current law, a “commissioning parent” – that is a person who wants to use a surrogate mother – must use his own sperm (in the case of a man) or her own eggs (in the case of a woman). Amy could not use her own eggs – the doctors had long before found that her own eggs were not viable. After all, that is why she had embryos made using eggs and sperm from anonymous donors – people who had donated to help infertile people like her.

She decided to take the government to court and challenge the existing law on human rights grounds – specifically her right to equality. How could the existing law only allow fertile people – people who can use their own eggs or sperm – to use surrogate mothers, but prohibit infertile people from using surrogate mothers? It simply did not make sense. The High Court found in favour of Amy. However, the 11 justices of the Constitutional Court were divided. While one group was passionately on Amy’s side, a larger group sided with the government. The majority argued that the current law (that requires Amy to use her own eggs if she wants to use a surrogate mother) does not discriminate against infertile people like Amy; they argued that it was Amy’sown infertility that stopped her from having children, and not the law. But does this make sense?

Let’s compare Amy’s case with the example of the School of Law’s building and its accessibility to people who are mobility disabled. If there were a law that banned people from using the ramp instead of the stairs, would this law discriminate against disabled people? Obviously, yes! One cannot defend such a law by arguing that it is not the law that discriminates, but disabled people’s own disability that is to blame. There is a ramp that people with wheelchairs can use to access the building. Similarly, in the case of Amy, surrogacy and donor eggs and sperm give her “access” to the joy of having children. Demanding that Amy should use her own eggs – which she could not because she is infertile – is the same as demanding that people in wheelchairs must use their own legs to climb the stairs!

The fact that the majority of the Constitutional Court sided against Amy was a sad day for human rights and our country. Their argument that the existing law does not discriminate against infertile people like Amy was clearly wrong. The Constitutional Court had the opportunity to help infertile people – people who are often marginalised and ostracised, and who suffer deeply because of their disability. But instead of doing their constitutional duty and standing up against discrimination, the majority of the Constitutional Court told Amy that it was only her own disability – her infertility – that was to blame. This is a disgrace!

This happened in 2015. Now, seven years later, the same discriminatory law is again being challenged in court. It will first be heard in the Mpumalanga High Court, and then come before the Constitutional Court again. Will the Constitutional Court redeem itself and rectify its previous egregious mistake?

The Constitution envisions South Africa as a society that has compassion for all its members. But, how can we claim to have compassion if we allow the law to ban people like Amy from realising their innermost desire to build a family? How can we claim to have compassion if we tell people who suffer from infertility that they must blame their own infertility when we know that medical technology offers solutions that can be used – like donor eggs and surrogacy? This is the same as asking: How can we claim to have compassion if we ban people in wheelchairs from using the ramp at the School of Law?

I call on the justices of the Constitutional Court to right this wrong!

*Donrich Thaldar is a professor of Law at the University of KwaZulu-Natal, and visiting scholar at Harvard University. Thaldar’s research interests are biolaw and bioethics, with a focus on genomics research and new reproductive technologies. He also has a private law practice where he focuses on strategic litigation in biolaw. He served as legal counsel in several landmark cases in biolaw in South Africa, including the country’s first physician-assisted dying test case, its first case of posthumous conception, and its first case that considered the validity of a known sperm donor agreement.

Photograph: Supplied

*The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the University of KwaZulu-Natal.

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