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Full Notes for Advanced Family Law 452 R81,00
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Full Notes for Advanced Family Law 452

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Notes include case discussions and legislation as it was dealt with in class.

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  • March 8, 2021
  • 28
  • 2020/2021
  • Class notes
  • Dr horsten
  • All classes
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zhawnehendricks
Study Unit 2: Legal Medical Issues

2.1 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


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,  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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