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ANALYSIS: How the facts of a matter don’t matter to SA’s ConCourt

There are many reasons to baulk at a judgment by a majority of the constitutional court late last year in a case to have a section of the Children’s Act dealing with surrogacy agreements declared unconstitutional. This is not least for its restrictive take on reproductive rights and diverse family formations.

But for anyone interested in taking facts seriously, the judgment is also significant for striking a blow against empirical research in interpreting legislation. It roundly rejected the role of credible data in determining whether law is constitutional.

Surrogacy requires direct genetic link

The applicant in the judgment, Ms AB, had long struggled with infertility and was told to consider surrogacy – that is, to enter into an agreement with another woman to carry her baby to term.

Surrogacy is permitted by South Africa’s Children’s Act of 2005, although surrogacy agreements are tightly regulated. This includes a requirement that there be a direct genetic link between a prospective parent and the child born as a result.

Ms AB was baffled by the restriction: when she underwent in vitro fertilisation (IVF) treatment, it was with both donor ova and sperm and this was perfectly legal. Why, then, should there be any obstacle to her using double donors within a surrogacy arrangement?

Supported by the Surrogacy Advisory Group, an NGO that works in this area, she launched a constitutional challenge to this section of the act. At the high court, Ms AB was successful and the matter was referred to the Constitutional Court to confirm the finding.

Usefulness of facts denounced

In a judgment written by Justice Bess Nkabinde, the majority of the constitutional court disagreed with the high court. It found that none of Ms AB’s rights is violated by the legislation, not even her right to make reproductive decisions.

This right, the judgment held, concerns only decisions for one’s own anatomy: it is not engaged in any parental choice that does not encompass brute bodily facts.

Worryingly, the judgment also denounced the usefulness of facts in informing constitutional interpretation. Nkabinde faulted the high court judgment for finding that credible data must be put forward showing that the absence of a genetic link is detrimental to a surrogate child.

“That approach,” Nkabinde objected, “elevates the importance of empirical research above the purposive construction of the challenged provision.”

Rich track record of drawing on empirics

It is true that the courts, and not expert opinion, have the last say on constitutional interpretation and rightly so. But the majority judgment set up an entirely false dichotomy between empiricism on the one hand and interpretation on the other.

After all, the judiciary has a rich track record of drawing on empirics – be this pointed data or more sweeping societal context – to inform a constitutional interpretation of legislation.

For example, when the Teddy Bear Clinic for Abused Children challenged provisions of the Childrens Act that criminalised certain sexual conduct between adolescents, the constitutional court relied on expert evidence regarding what constitutes developmentally normal sexual conduct to conclude the provisions were unconstitutional.

More broadly, the court has resoundingly and correctly emphasised the significance of apartheid, centuries of racist oppression and ongoing structural inequality for the interpretation of legislation. Examples are when it found that the death penalty is unconstitutional; when it upheld affirmative action measures and when it censured hate speech in the workplace. This context can be crucial for construing legislation in light of its purposes.

This is not just an academic point. The extent to which our courts draw on the facts can significantly impact lay people.

One of the most famous instances, credited with saving hundreds of thousands of lives, is the constitutional court’s judgment in a case brought by the Treatment Action Campaign in 2002. There, expert evidence was successfully put forward to make the case for the affordability and effectiveness of the antiretroviral nevirapine for preventing mother-to-child transmission of HIV.

This evidence informed the court’s testing of whether the state had met its health-care obligations under the constitution and ultimately enabled the court to rule definitively against anti-scientific AIDS denialism.

We should hope, then, that next time the court will not turn its face from the facts, as it did in its surrogacy judgment.

Meghan Finn is a former law clerk of the Constitutional Court of South Africa and is currently a pupil at the Johannesburg Society of Advocates.

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