BIRTH AND ADOPTION:
PART 1
MR SHANE HULL
LECTURER AT UNIVERSITY OF WESTERN CAPE, ROOM 211
BIRTH AND
ADOPTION: PART 1
PRESCRIBED READINGS:
KRUGER H & SKELTON A (EDS) ET AL LAW OF PERSONS TEXTBOOK PAGES
85- 110
AB v Minister of Social Development 2017 (3) SA 570 (CC)
KLVC v SDI [ 2015] 1 ALL SA 532 (SCA)
Children’s Act 38 of 2005
BIRTH AND
ADOPTION
IMPORTANCEOF INCORPORATING DIFFERENT LEARNING
TECHNIQUES IN THIS CHAPTER
YOUTUBE VIDEO :
VISUAL AND AUDITORY LEARNING
https://www.youtube.com/watch?v=duPxBXN4qMg
LECTURE
OBJECTIVES
Following the completion of this unit, students must:
Be able to define ‘artificial fertilisation’
Distinguish between the various forms of ‘surrogacy’
Explain, in broad terms, what ‘proof of parentage’ entails
Be able to summarise the PR&R of the father of a child.
Describe the various ways in which the status of a child born of unmarried
parents can be terminated.
Differentiate between instances where parental consent is necessary for
1.
INTRODUCTION
In this chapter, we discuss two aspects of the status of a person:
1. Birth , either by married parents or partners in a Civil Union, or
by way of Artificial Fertilisation
2. Adoption – Children’s Act 38 of 2005 shifted the emphasis from
labelling children to labelling the marital status of their
parents
Rightsand responsibilities of unmarried parents
lessened- some differences still exists which affects the
status of children
A child born of married
aparents is:
child is regarded of married parents at the time of the child’s
conception or birth or at any intervening time:
where the parents marry after the birth of the child
a child born of a putative marriage
a child conceived or born of a voidable marriage
an adopted child where the adoptive parents are married each
other
Affiliation
In customary law, all Affiliation is
children must be necessary because
affiliated to a it allows the child
particular family to use the
ancestral
group or clan
surname and
(whether they are follow the
born of married or customs and
unmarried parents or traditions of the
adopted). group.
2. Children conceived by Artificial Fertilisation
( “AF” )
Meaning of AF:
the introduction, by artificial means, of a male gamete into the internal
reproductive organs of a woman for the purpose of human reproduction
Gamete? – section 1(1) of the Children’s Act states: “either of the two
generative cells essential for human reproduction”
Includes the joining/bringing together of a male or female gamete
outside the human body with the purpose of placing the product of a
union of such gametes in the womb of a female person
Problem areas: AF and surrogacy
POSSIBLE
SCENARIO:
Leo and Bridget are married and are eager to have a baby. Leo has a low
sperm count which means that there is a small chance of Bridget
conceiving. He would like them to adopt. But Bridget yearns to experience
firsthand what pregnancy is like. She secretly obtains sperm from Leo’s
brother, Santa, without Leo’s consent and falls pregnant. She knows that
Leo would never approve, so she lets him believe that the child is his.
She later gives birth to baby Chucky.
What is the status of baby Chucky?
What is the relationship between Leo and Chucky?
What is the relationship between Santa and Chucky?
2.1 Status of child born by AF
a) If a child is born as a result of artificial fertilisation with
the gametes of a woman’s husband or civil union
partner:
The child is regarded as a child born of married
parents, even if the woman’s husband or civil union
partner did not consent to the procedure (Children’s
Act 38 of 2005 s 40 read with Civil Union Act 17 of
2006 s 13).
2.1 Status of child born by AF
b) If a child is born as a result of artificial fertilisation with
donor gametes, and his birth mother is married or a
partner in a civil union:
The child is regarded as a child born of married parents
if the husband or civil union partner of the child’s birth
mother agreed to the artificial fertilisation but if he or
she did not agree, he will be regarded as a child born
of unmarried parents (Children’s Act s 40 read with
Civil Union Act s 13).
2.1 Status of child born by AF
c) If a child is born as a result of artificial fertilisation with
donor gametes, and his or her birth mother is unmarried
but cohabiting with her heterosexual or same-sex life-
partner:
The child is regarded as a child born of unmarried
parents regardless of whether the partner consents to
the artificial fertilisation (Children’s Act s 40).
Relationship between the child and its birth
mother and between the child and the person
whose gamete was used for the AF:
A woman who gives birth to a child who was conceived as
a result of AF is regarded as the child’s mother,
unless she is the child’s surrogate mother ito a valid
surrogate motherhood agreement
• This rule applies even if the mother is married, unmarried, a
party to a civil union, or a party to a life partnership that does
qualify as a civil union
CONTINUATION
no rights, obligations, responsibilities or duties arise between a child who was
born as a result of AF and the person whose gamete was used or between the child
and the person’s blood relations (section 40(3))
Exception: unless the person whose gamete was used (donor) is the child’s birth
mother or her husband or civil union partner (section 40(3)(b))
Anomaly created by section 40:
J v Director General, Dept of Home Affairs: children of AF to same-sex life partner
= child of married parents (because no choice in matter)
Children’s Act: child of AF to same-sex life partner = child of unmarried parents
Matter now resolved because same-sex couples have choice to marry or not
Children thus on equal footing as those in heterosexual couples who don’t
marry
