oa Constitutional Court Review - The constitution as an instrument of prejudice : a critique of AB v Minister of Social Development

Volume 9 Number 1
  • ISSN : 2073-6215
  • E-ISSN: 2521-5183



In AB v Minister of Social Development, the applicants challenged extant law that requires surrogacy commissioning parents to use their own gametes for the conception of a child, rather than donor gametes. The majority of the Constitutional Court rejected the challenge on the basis that a child has the right to know his/her genetic origins. The basic premise for this was that knowing one’s genetic origins is important to a child’s development of a positive self-identity. However, the psychological expert opinions before the Court cast doubt on this premise. Why did the majority of the Court disregard the expert evidence and accept the premise? I suggest that the likely reason is that the premise is supported by traditional black South African cultural precepts about kinship formation, which continues to be influential in contemporary South Africa. In this cultural tradition, belonging to a clan is foundational to one’s identity. Belonging, in turn, depends on blood ties with the clan, or, in less rigid varieties of this tradition, depends on at least knowing the child’s genetic origins. Therefore, in this cultural tradition, if a child was conceived using male and female anonymous donor gametes, then belonging to a clan would be impossible, and the child would lack a foundational element of his/ her identity. The fact that these traditional cultural precepts about kinship formation continue to be influential in contemporary South Africa cannot support the majority judgment in AB, as these cultural precepts constitute prejudice against children based on their social origins. While such prejudice may be beyond the control of the law, the law should never give effect to prejudice. By interpreting constitutional rights such as dignity and the best interests of the child through a lens of prejudice, the Court rendered the Constitution an instrument of prejudice.

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