Surrogacy in South Africa was formalised in 2010.

Since then experts say more couples and single intended parents have opted for surrogacy, using progressive and strict surrogacy laws unlike many other countries that don't entertain the issue.

Surrogacy expert Dr Merwyn Jacobson of Vitalab says the advantage of surrogacy for parents is being able to achieve a pregnancy with one's own genetic material, in circumstances where it would otherwise not be possible.

"In my personal opinion, the department (Social Development) is distorting the significance of the genetic link and it would not be any easier for the surrogate or the commissioning parents to walk away from such a pregnancy, as it would be to give a child up for adoption?"

Jennie Currie of baby2mom, an egg donation agency, says where a genetic link is a non-negotiable requirement, this usually impacts on single women who had their own fertility challenges and needed donor eggs and a surrogate.

"I have been facilitating egg donation cycles for nearly nine years and can unequivocally indicate that when a parent conceives through the help of an egg donor, this contributes to healing and wellness.

"It has been devastating when previous potential commissioning parents, in my experience single infertile women, have not been able to proceed along the surrogate route as the genetic link was missing," she says.

Attorney Anthony Wilton adds: "The court order defines the parental rights and that person cannot then just turn their back on the child".

Lawyer Adele van der Walt says: "Lesbian couples do not resort under surrogacy as the use of the uterus is in the relationship or marriage. If the Constitutional Court upholds this argument, the position since 2010 will stay the same."

But if the Constitutional Court decides otherwise, it will give more intended parents without their own genetic material an opportunity, but she adds the child is the biggest concern.