Research by UKZN Law Academics Cited in High Court Judgement

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A paper by School of Law academic, Ms Sheetal Soni, and College of Law and Management Studies Dean of Research, Professor Marita Carnelley, has been cited in a High Court judgement in the case of AB & the Surrogacy Advisory Group vs the Minister of Social Development and the Centre for Child Law as Amicus Curiae.   

The paper, titled: “A Tale of Two Mummies. Providing a Womb in South Africa: Surrogacy and the Legal Rights of the Parents within the Children’s Act 38 of 2005. A Brief Comparative Study with the United Kingdom (2008) 22 Speculum Juris 42)”, discusses the provisions of Chapter 19 of the Children’s Act of 2005 which regulates surrogate motherhood agreements. It also includes a comparison of the Act’s provisions and the legal provisions which apply in the United Kingdom. 

Speaking on the achievement, Soni and Carnelley said contributing to the country’s jurisprudence was what academics aspired to. 

‘It is incredibly humbling to see our work make an impact in a judgement in a field which is still very new in the South African law system. So far the Act has equipped us with the rules and concepts but these have never been tested properly in a court before, and it is very fulfilling to see our work has assisted in the interpretation of the Act,’ said Soni. 

‘At the time of writing the article, we had already questioned the constitutional validity of Section 294 and had deduced that it could be regarded as unfair discrimination for a number of reasons, so it’s great to see that conclusion confirmed by a court of law,’ said Soni. 

Carnelley said the achievement ‘gives real meaning to what we do as academics – to impact the actual discourse where it matters most’. 

Soni is currently working towards her PhD which focusses on developing a legal framework in the field of assisted reproductive technologies - specifically on the preimplantation testing of embryos used in in vitro fertilisation.

Carnelley, who is focusing on the upcoming graduation and the process to get as many students as possible to ‘degree complete’, aims to complete an article on the ranking of law journals. 

Thandiwe Jumo