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Full Notes for Advanced Family Law 452
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Study Unit 2: Legal Medical Issues2.1 General overview
Children
1. Natural conception
2. Artificial reproductive techniques
Artificial insemination fertilisation takes place within woman’s body
Woman uses her own egg cell
Male cell can come from either her husband (if married) or a donor
Distinguish between AiH (using gamete’s of husband) and AiD (using a donors
gamete’s) fertilisations
AiH child status of child:
o Mother = woman who gives birth
o Father = spouse who gave his sperm
AiD status of child:
o Mother = woman who gives birth
o Father = spouse if she has one - consent is presumed by spouse
o Donor = no rights or obligations S40 of the Children’s Act
o If donor = anonymous – child may ito SA law never have access to
donor’s identity
o Child may access the medical history of donor
3. IVF
Fertilisation takes place outside the woman’s body
Once fertilisation has taken place, the product of fertilisation – pre-embryo = placed into
woman’s body
Eg: single woman
Can use double donor gamete’s
Mother – general rule = woman who carries & gives birth irrespectively of
whether it is genetically hers
Woman & husband
Try both of theirs whichever is “faulty” use a donor
Mother = woman who gives birth
Father = spouse of woman who gives birth
2 woman
1 gives birth inseminated by donor sperm
Mother = woman who carries & gives birth
Parent 2 = depend on whether the spouses are in a civil union
If they are married (in civil union) spouse = parent 2
If not, spouse will not qualify as parent 2 but would have to adopt the child
Even if child is not genetically the mother & fathers – can still carry and be the mother
and father
4. Surrogacy
Husband dies
o Organs can be used via organ donation / scientific research
Law: traditionally a rather conservative discipline
The law is always (more than) one step behind:
o Organ transplants – regulated by law long after the first organ transplant
When you read articles pre-2012 that when they refer to Human Tissue Act 65 of
1983 it has been replaced by National Health Act 61 of 2003
o Artificial fertilisation
1
, Children’s Status Act 82 of 1987
Repealed and replaced by Children’s Act 38 of 2005
From fertilization – 14 days = pre-embryo’s
Weaker pre-embryo’s get left behind what are they? What should be done with them? Do they
deserve protection?
o Current situation regarding pre-embryo’s:
Are protected to a degree
Will be destroyed with consent of both parents – when parents realize that they don’t
want another child
Parents can donate them for scientific research
They can be destroyed
In SA, a pre-embryo that was created for reproductive reasons can be used for research
BUT a pre-embryo cannot be created for purposes of scientific research
o Answers: not purely legal principles religious, moral and ethical considerations
o Some questions that haven’t been answered yet:
Artificial insemination
Status of pre-embryo & embryo once its been planted
Embryo selection – based on sex
MRC Ethics guidelines
o “The pre-embryo should be treated with the utmost respect because it is a genetically unique,
viable human entity”
Issue – factually incorrect statement
o “A human embryo is special because of its potential for human life”
Also problematic – egg & sperm cells also do
Prescribed article
o Slabber 2001 TSAR: “Ectogenesis… violates the principle of equality, as this technology eliminates
the role of women in reproduction and dehumanises motherhood, as woman are not required in
the process of gestation of a foetus and eventual childbirth”
2.2 Legal Medical Issues: Surrogacy
. Class exercise: Mr and Mrs A who is originally from Belgium, but now permanently reside and work in SA,
approach you for advice. Four years ago, Mrs A was involved in a serious motor vehicle accident, and as a
result thereof, is unable to conceive or carry children. They intend t o enter into a surrogacy agreement
with Mrs A’s sister, Ms B, who lives and works in Belgium. They intend to use the gametes of Mr A and Ms
S so that their child will still be biologically related to both of them. Mr and Mrs A not want to know from
you whether or not in terms of SA law they will be able to have Ms B artificially inseminated with Mr A’s
sperm in order to carry and give birth to a child for the,. If it would be possible, they would also like to
know whether Ms B will have the right to terminate either the pregnancy or the surrogacy agreement.
Should Ms B indeed have the right to terminate either the pregnancy or the greement, Mr and Mrs A
would like to know under which circumstances, and what the consequences thereof will be. Advise Mr
and Mrs A in this regard.
As a rule Ms B would not be able to be mother not domiciled in SA
If can show good cause then can
o Good cause = family member
Termination of pregnancy:
o B can terminate pregnancy as long as pregnancy complies with Choice of Termination Act
o Decision = B’s (pregnant woman)
Termination of surrogate motherhood agreement:
o Yes – up until after 60 days of birth of child
2
, o Can terminate because her eggs are used
o General rule – can terminate
Exception: if surrogate mothers gametes are used then she can terminate anytime
before birth or within 60 days after the birth of the child
Commissioning parents = parents who want to have child
Surrogacy = strictly regulated in SA
o International surrogacy is not allowed as a general rule
o SA would never allow surrogacy wrt a registered sex offender
Surrogacy = regulated by chapt 19 of Children’s Act
o Definition art 1 Children’s Act
'surrogate motherhood agreement' means an agreement between a surrogate mother
and a commissioning parent in which it is agreed that the surrogate mother will be
artificially fertilised for the purpose of bearing a child for the commissioning parent and
in which the surrogate mother undertakes to hand over such a child to the
commissioning parent upon its birth, or within a reasonable time thereafter, with the
intention that the child concerned becomes the legitimate child of the commissioning
parent;”
intention: child legally becomes child of commissioning parents have parental
responsibility and rights
o National Health Act, 2003: regulations Relating to Artificial Fertilisation of Persons:
“surrogate” is a voluntary recipient of an embryo who will carry such embryo to birth for
contractual parents
o Contradiction between Act and subordinate leg
Act – artificially fertilized can include artificially inseminated
Subordinate leg refer to IVF & embryo being implanted
Not an issue
Can B be inseminated with A’s sperm?
o Chapt 19 of CA
o Requirements for valid surrogate motherhood agreement:
(1) S 292(1)(a): Agreement must be in writing and signed by all parties
Parties eg = Mr A, Mrs A & Ms B
o Surrogate mother
Surrogate mother in permanent relationship…
husband/wife/partner has to consent (do not have to become
a party to the agreement – just consent)
o Commissioning parent(s)
Commissioning parent in permanent relationship,
husband/wife/partner has to consent and become party to
the agreement
If no info in set of facts about marital status – should surrogate mother be
married or in life partnership, then that party also has to consent and be joined
as a party to agreement
(2) S 292(1)(b): Agreement must be entered into in Republic of SA
(3) S 292(1)(c): domicile of commissioning parents
At least on of commissioning parents or where single commissioning parents
have to be domiciled in RSA
Surrogate mother and her partner must be domiciled in RSA
Draft amendment bill has stricter requirement
o Not only domiciled in RSA but habitually resident in RSA
S 292(1)(d): domicile of surrogate mother and partner
(4) S292(1)(e): confirmation by court
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