Class notes
notes
- Course
- Law of Persons
- Institution
- Boston City Campus And Business College (boston)
Lecture notes of 30 pages for the course Law of Persons at boston (notes)
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Birth and AdoptionIntroduction:
There are two aspects that influence the status of a person. The first being birth,
more specifically: birth to parents who are not married or partners in a civil union;
birth by way of artificial insemination; and/or surrogacy. The second being
adoption.
Birth:
It is necessary to make a distinction between children born A putative marriage is
of married parents and children born of unmarried parents. a void marriage in
Children are regarded as children born of married parents which one or both of
where the biological parents of the child were married to the parties, are in good
each other at the time of conception or birth of the child faith, unaware of the
or at any stage in between. defect rendering the
marriage void.
Children whose parents subsequently married each other –
irrespective of whether they could have married each other
at the time of conception or birth of the child is included in A voidable marriage is
this category, as well as children born of a putative or a valid marriage in
voidable marriage. which there were
circumstances existing
An adopted child is regarded as the child of the adoptive at the time of the
parents. If the adoptive parents are married or in a civil marriage that allow
union, the child would be regarded as the child of married one of the parties to
parents. If the adoptive parent is single, he/she has sole have the marriage
responsibilities and rights toward that child. annulled in court.
As the marital status of the parents is important, it is essential to determine who
the parents of the child are. In most instances the determination of the biological
parent is unproblematic or controversial.
*Artificial fertilisation and surrogacy are two areas where the biological parents are
not necessarily the legal parents of the child.*
Artificial fertilisation:
Artificial fertilisation is defined as “the introduction, by means other than natural
means, of a male gamete into the internal reproductive organs of a female person
for the purpose of human reproduction.” – Children’s Act 38 of 2005. This can
include the bringing together of a male and female gamete outside the body with
the view to placing the product of a union of such gametes in the womb of a
female person.
There are specific rules relating to the status of a child born as a result of artificial
fertilisation:
Child born of… Method of reproduction Status of child
Married woman Gametes of her husband Child regarded as child born of
married parents
, Gametes of third-party Child regarded as child born of
Married woman donor ovum with the married parents
consent of her spouse or
partner
Single woman Gametes of sperm and/or Child regarded as child born of
ovum donor unmarried parents
No right, responsibility, duty or obligation arises between child born of a woman
as a result of artificial fertilisation and the person whose gametes were used for
the artificial fertilisation.
Surrogacy:
Forms of surrogacy:
Surrogate mother’s own
gamete is used
Traditional/
partial She is the genetic, gestating
and birth mother
Forms of
surrogacy
Foreign gametes are used
Gestational/
full
Surrogate mother not
genetically related to child
The surrogacy agreement:
The issue of surrogacy becomes problematic legally when the surrogacy
arrangement does not proceed according to plan, that is, where the birth mother
refuses to hand the child over to the commissioning parents after birth, according
to the agreement.
Commercial surrogacy, that is, surrogacy for profit, is prohibited by the Act. The
surrogate mother may not use surrogacy as a source of income, and she may
enter into the agreement only for altruistic or selfless reasons and not for
commercial purposes. Some compensation in cash or kind relating to a lawful
surrogacy agreement is allowed and enforceable, but this is limited to the
compensation provided for in the Act and must be contained in the agreement
itself.
The Act allows for the following compensation: first, the expenses that relate
directly to the artificial fertilisation and the pregnancy itself, the birth of the
child and the confirmation of the surrogate motherhood agreement; second, any
loss of earnings suffered by the surrogate mother as a result of the agreement;
and third, insurance to cover the surrogate mother for anything that may lead to
, her death or disability brought about by the pregnancy. Apart from the above, no
person may give or promise to give to any person or receive from any person a
reward or compensation in cash or kind. Any compensation or promise to
compensate, in contravention of this provision, amounts to a criminal offence.
A key feature of the provisions for the surrogacy agreement is that the child must
be genetically related to both the commissioning parents, except where for
biological, medical or other valid reasons this is not possible. In such a case, the
gametes of at least one of the commissioning parents must be used, so that there
is always a genetic link between the child born through a surrogate mother and
the commissioning parents. Where the commissioning parent is a single person,
the use of the gamete of that person is obligatory. There is no prohibition on the
use of the gamete of the surrogate mother (as long as the male gamete used is
that of the commissioning husband), thus making both partial (traditional)
surrogacy and full (gestational) surrogacy a legal possibility.
The Act is formulated in such a manner that a single parent as well as spouses,
civil union couples and cohabitees, be they heterosexual or same-sex, all qualify
as commissioning parents as long as one or both of the parties can provide the
requisite gametes.38 Where the commissioning parent or the surrogate mother is
married or in a permanent relationship, the other spouse or partner must give
written consent to the agreement and must become a party to the agreement.
The court may, however, confirm the agreement where the husband or partner of
a surrogate mother, who is not the genetic parent of the child, unreasonably
withholds consent.
For the court to confirm a surrogate motherhood agreement, several
requirements relating to the parties must be met regarding infertility,
competency, suitability, understanding and the reasons for entering into the
agreement:
• First, the commissioning parent(s) must be unable to give birth to a child
and the condition must be permanent and irreversible. Surrogacy must be
the sole manner in which a couple can give birth to a child that is
biologically related to at least one of them.
• Second, the commissioning parent(s) and the surrogate mother must be
competent to enter into the agreement.
• Third, the commissioning parent(s) must be suitable persons to accept
parenthood and the surrogate mother must be suitable to act as the
surrogate mother.
• Fourth, the commissioning parent(s) and the surrogate mother must
understand and accept the legal consequences of the agreement, the Act
as well as their rights and obligations in terms thereof.
• Fifth, the surrogate mother may not use the surrogacy as a source of
income but must enter into it for altruistic reasons. The surrogate mother
must have a documented history of at least one pregnancy and viable
delivery and a living child of her own. This requirement is linked to the
surrogate mother’s understanding and experience of pregnancy and
childbirth and to ensure that the surrogate mother, as a woman, is aware
of the degree of care required when being pregnant. It would be more
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