Wednesday 14 March 2012

Relevant sections of the Children's Act 38 of 2005


LPLP 101 ADDENDUM -PREPARED BY MS L RAMACCIO CALVINO

Kindly note that certain sections of the prescribed text book “South African Law of Persons” are not in line with the Children’s Act, 2005 (Act No.38 of 2005), hence is outdated.

This addendum does not purport to be extensive, but merely a brief summary of the most important amendments to relevant aspects affecting the law of persons in lieu of changed legislation.    

 

Chapter 2: General Principles

 

7. Best interests of child standard

1)        Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-
a)        the nature of the personal relationship between-
i)          the child and the parents, or any specific parent; and
ii)         the child and any other care-giver or person relevant in those circumstances;
b)        the attitude of the parents, or any specific parent, towards-
i)          the child; and
ii)         the exercise of parental responsibilities and rights in respect of the child;
c)        the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;
d)        the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from-
i)          both or either of the parents; or
ii)         any brother or sister or other child, or any other care-giver or person, with whom the child has been living;
e)        the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
f)          the need for the child-
i)          to remain in the care of his or her parent, family and extended family; and
ii)         to maintain a connection with his or her family, extended family, culture or tradition;
g)        the child’s-
i)          age, maturity and stage of development;
ii)         gender;
iii)        background; and
iv)        any other relevant characteristics of the child;
h)        the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;
i)          any disability that a child may have;
j)          any chronic illness from which a child may suffer;
k)        the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
l)          the need to protect the child from any physical or psychological harm that may be caused by-
i)          subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
ii)         exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;
m)       any family violence involving the child or a family member of the child; and
n)        which action or decision would avoid or minimize further legal or administrative proceedings in relation to the child.

2)        In this section "parent" includes any person who has parental responsibilities and rights in respect of a child.

 

9. Best interests of child paramount

 In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.

12. Social, cultural and religious practices

1)        Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being.

2)        A child-
a)        below the minimum age set by law for a valid marriage may not be given out in marriage or engagement; and
b)        above that minimum age may not be given out in marriage or engagement without his or her consent.

3)        Genital mutilation or the circumcision of female children is prohibited.

4)        Virginity testing of children under the age of 16 is prohibited.

5)        Virginity testing of children older than 16 may only be performed-
a)        if the child has given consent to the testing in the prescribed manner;
b)        after proper counseling of the child; and
c)        in the manner prescribed.

6)        The results of a virginity test may not be disclosed without the consent of the child;

7)        The body of a child who has undergone virginity testing may not be marked.

8)        Circumcision of male children under the age of 16 is prohibited, except when-
a)        circumcision is performed for religious purposes in accordance with the practices of the religion concerned and in the manner prescribed; or
b)        circumcision is performed for medical reasons on the recommendation of a medical practitioner.

9)        Circumcision of male children older than 16 may only be performed-
a)        if the child has given consent to the circumcision in the prescribed manner;
b)        after proper counseling of the child; and
c)        in the manner prescribed.

10)      Taking into consideration the child’s age, maturity and stage of development, every male child has the right to refuse circumcision.

17. Age of majority

A child, whether male or female, becomes a major upon reaching the age of 18 years.

 Chapter 3: Parental Responsibilities and Rights

Part 1: Acquisition and loss of parental responsibilities and rights

18. Parental responsibilities and rights

1)        A person may have either full or specific parental responsibilities and rights in respect of a child.

2)        The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right-
a)        to care for the child;
b)        to maintain contact with the child;
c)        to act as guardian of the child; and
d)        to contribute to the maintenance of the child.

3)        Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must-
a)        administer and safeguard the child’s property and property interests;
b)        assist or represent the child in administrative, contractual and other legal matters; or
c)        give or refuse any consent required by law in respect of the child, including-
i)          consent to the child’s marriage;
ii)         consent to the child’s adoption;
iii)        consent to the child’s departure or removal from the Republic;
iv)        consent to the child’s application for a passport; and
v)         consent to the alienation or encumbrance of any immovable property of the child.

4)        Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.

5)       Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).

19. Parental responsibilities and rights of mothers

1)        The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.

2)        If-
a)        the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and
b)        the biological father of the child does not have guardianship in respect of the child,
the guardian of the child’s biological mother is also the guardian of the child.

3)        This section does not apply in respect of a child who is the subject of a surrogacy agreement.

20. Parental responsibilities and rights of married fathers

1)        The biological father of a child has full parental responsibilities and rights in respect of the child-
a)        if he is married to the child’s mother; or
b)        if he was married to the child’s mother at-
i)          the time of the child’s conception;
ii)         the time of the child’s birth; or
iii)        any time between the child’s conception and birth.

21. Parental responsibilities and rights of unmarried fathers

1)        The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-
a)        if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
b)        if he, regardless of whether he has lived or is living with the mother-
i)          consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
ii)         contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
iii)        contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

2)        This section does not affect the duty of a father to contribute towards the maintenance of the child.
3)        
a)        If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfillment by that father of the conditions set out in subsection (1)(a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
b)        Any party to the mediation may have the outcome of the mediation reviewed by a court.

4)        This section applies regardless of whether the child was born before or after the commencement of this Act.

22. Parental responsibilities and rights agreements

1)        Subject to subsection (2), the mother of a child or other person who has parental responsibilities and rights in respect of a child may enter into an agreement providing for the acquisition of such parental responsibilities and rights in respect of the child as are set out in the agreement, with-
a)        the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 or by court order; or
b)        any other person having an interest in the care, well-being and development of the child.

2)        The mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement upon a person contemplated in subsection (1) those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such an agreement.

3)        A parental responsibilities and rights agreement must be in the prescribed format and contain the prescribed particulars.

4)        Subject to subsection (6), a parental responsibilities and rights agreement takes effect only if-
a)        registered with the family advocate; or
b)        made an order of the High Court, a divorce court in a divorce matter or the children's court on application by the parties to the agreement.

5)        Before registering a parental responsibilities and rights agreement or before making a parental responsibilities and rights agreement an order of court, the family advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child.
6)        
a)        A parental responsibilities and rights agreement registered by the family advocate may be amended or terminated by the family advocate on application-
i)          by a person having parental responsibilities and rights in respect of the child;
ii)         by the child, acting with leave of the court; or
iii)        in the child’s interest by any other person, acting with leave of the court.
b)        A parental responsibilities and rights agreement that was made an order of court may only be amended or terminated on application-
i)          by a person having parental responsibilities and rights in respect of the child;
ii)         by the child, acting with leave of the court; or
iii)        in the child’s interest by any other person, acting with leave of the court.

7)        Only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement that relates to the guardianship of a child.

23. Assignment of contact and care to interested person by order of court

1)        Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children's court for an order granting to the applicant, on such conditions as the court may deem necessary-
a)        contact with the child; or
b)        care of the child.

2)        When considering an application contemplated in subsection (1), the court must take into account-
a)        the best interests of the child;
b)        the relationship between the applicant and the child, and any other relevant person and the child;
c)        the degree of commitment that the applicant has shown towards the child;
d)        the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
e)        any other fact that should, in the opinion of the court, be taken into account.

3)        If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court-
a)        must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the child; and
b)        may suspend the first-mentioned application on any conditions it may determine.

4)        The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.

24. Assignment of guardianship by order of court

1)        Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.

2)        When considering an application contemplated in subsection (1), the court must take into account-
a)        the best interests of the child;
b)        the relationship between the applicant and the child, and any other relevant person and the child; and
c)        any other fact that should, in the opinion of the court, be taken into account.

3)        In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.

26. Person claiming paternity

1)        A person who is not married to the mother of a child and who is or claims to be the biological father of the child may-
a)        apply for an amendment to be effected to the registration of birth of the child in terms of section 11(4) of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992), identifying him as the father of the child, if the mother consents to such amendment; or
b)        apply to a court for an order confirming his paternity of the child, if the mother-
i)          refuses to consent to such amendment;
ii)         is incompetent to give consent due to mental illness;
iii)        cannot be located; or
iv)        is deceased.

2)        This section does not apply to-
a)        the biological father of a child conceived through the rape of or incest with the child’s mother; or
b)        any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilization.

27. Assignment of guardianship and care

1)        
a)        A parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of the death of the parent.
b)        A parent who has the sole care of a child may appoint a fit and proper person to be vested with care of the child in the event of the death of the parent.

2)        An appointment in terms of subsection (1) must be contained in a will made by the parent.

3)        A person appointed in terms of subsection (1) acquires guardianship or care, as the case may be, in respect of a child-
a)        after the death of the parent; and
b)        upon the person’s express or implied acceptance of the appointment.

4)        If two or more persons are appointed as guardians or to be vested with the care of the child, any one or more or all of them may accept the appointment except if the appointment provides otherwise.

28. Termination, extension, suspension or restriction of parental responsibilities and rights

1)        A person referred to in subsection (3) may apply to the High Court, a divorce court in a divorce matter or a children's court for an order-
a)        suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child; or
b)        extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.

2)        An application in terms of subsection (1) may be combined with an application in terms of section 23 for the assignment of contact and care in respect of the child to the applicant in terms of that section,

3)        An application for an order referred to in subsection (1) may be brought-
a)        by a co-holder of parental responsibilities and rights in respect of the child;
b)        by any other person having a sufficient interest in the care, protection, well-being or development of the child;
c)        by the child, acting with leave of the court;
d)        in the child’s interest by any other person, acting with leave of the court; or
e)        by a family advocate or the representative of any interested organ of state.

4)        When considering such application the court must take into account-
a)        the best interests of the child;
b)        the relationship between the child and the person whose parental responsibilities and rights are being challenged;
c)        the degree of commitment that the person has shown towards the child; and
d)        any other fact that should, in the opinion of the court, be taken into account.

Part 2: Co-exercise of parental responsibilities and rights

 

30. Co-holders of parental responsibilities and rights

1)        More than one person may hold parental responsibilities and rights in respect of the same child.

2)        When more than one person holds the same parental responsibilities and rights in respect of a child, each of the co-holders may act without the consent of the other co-holder or holders when exercising those responsibilities and rights, except where this Act, any other law or an order of court provides otherwise.

3)        A co-holder of parental responsibilities and rights may not surrender or transfer those responsibilities and rights to another co-holder or any other person, but may by agreement with that other co-holder or person allow the other co-holder or person to exercise any or all of those responsibilities and rights on his or her behalf.

4)        An agreement in terms of subsection (3) does not divest a co-holder of his or her parental responsibilities and rights and that co-holder remains competent and liable to exercise those responsibilities and rights.


31. Major decisions involving child

1)        
a)        Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (3) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.
b)        A decision referred to in paragraph (a) is any decision-
i)          in connection with a matter listed in section 18(3)(c);
ii)         affecting contact between the child and a co-holder of parental responsibilities and rights;
iii)        regarding the assignment of guardianship or care in respect of the child to another person in terms of section 27; or
iv)        which is likely to significantly change, or to have an adverse effect on, the child’s living conditions, education, health, personal relations with a parent or family member or, generally, the child’s well-being.
2)        
a)        Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b), that person must give due consideration to any views and wishes expressed by any co-holder of parental responsibilities and rights in respect of the child.
b)        A decision referred to in paragraph (a) is any decision which is likely to change significantly, or to have a significant adverse effect on, the co-holder’s exercise of parental responsibilities and rights in respect of the child.

32. Care of child by person not holding parental responsibilities and rights

1)        A person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, including a care-giver who otherwise has no parental responsibilities and rights in respect of a child, must, whilst the child is in that person’s care-
a)        safeguard the child‘s health, well-being and development; and
b)        protect the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation, and any other physical, emotional or mental harm or hazards.

2)        Subject to section 129, a person referred to in subsection (1) may exercise any parental responsibilities and rights reasonably necessary to comply with subsection (1), including the right to consent to any medical examination or treatment of the child if such consent cannot reasonably be obtained from the parent or guardian of the child.

3)        A court may limit or restrict the parental responsibilities and rights which a person may exercise in terms of subsection (2).

4)        A person referred to in subsection (1) may not-
a)        hold himself or herself out as the biological or adoptive parent of the child; or
b)        deceive the child or any other person into believing that that person is the biological or adoptive parent of the

Part 3: Parenting Plans

 

33. Contents of parenting plans

1)        The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.

2)        If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.

3)        A parenting plan may determine any matter in connection with parental responsibilities and rights, including-
a)        where and with whom the child is to live;
b)        the maintenance of the child;
c)        contact between the child and-
i)          any of the parties; and
ii)         any other person; and
d)        the schooling and religious upbringing of the child.

4)        A parenting plan must comply with the best interests of the child standard as set out in section 7.

5)        In preparing a parenting plan as Contemplated in subsection (2) the parties must seek-
a)        the assistance of a family advocate, social worker or psychologist; or
b)        mediation through a social worker or other suitably qualified person.

34. Formalities

1)        A parenting plan-
a)        must be in writing and signed by the parties to the agreement; and
b)        subject to subsection (2), may be registered with a family advocate or made an order of court.

2)        An application by co-holders contemplated in section 33(1) for the registration of the parenting plan or for it to be made an order of court must-
a)        be in the prescribed format and contain the prescribed particulars; and
b)        be accompanied by a copy of the plan.

3)        An application by co-holders contemplated in section 33(2) for the registration of a parenting plan or for it to be made an order of court must-
a)        be in the prescribed format and contain the prescribed particulars; and
b)        be accompanied by-
i)          a copy of the plan; and
ii)         a statement by-
aa)      a family advocate, social worker or psychologist contemplated in section 33(5)(a) to the effect that the plan was prepared after consultation with such family advocate, social worker or psychologist;
or
bb)      a social worker or other appropriate person contemplated in section 33(5)(b) to the effect that the plan was prepared after mediation by such social worker or such person.

4)        A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.

5)        A parenting plan that was made an order of court may be amended or terminated only by an order of court on application-
a)        by the co-holders of parental responsibilities and rights who are parties to the plan;
b)        by the child, acting with leave of the court; or
c)        in the child’s interest, by any other person acting with leave of the court.

6)        Section 29 applies to an application in terms of subsection (2).

35. Refusal of access or refusal to exercise parental responsibilities and rights

1)        Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22(4), refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offense and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
2)        
a)        A person having care or custody of a child whereby another person has access to that child or holds parental responsibilities and rights in respect of that child in terms of an order of any court or a parental responsibilities and rights agreement as contemplated in subsection (1) must upon any change in his or her residential address forthwith in writing notify such other person of such change.
b)        A person who fails to comply with paragraph (a) is guilty of an offense and liable on conviction to a fine or to imprisonment for a period not exceeding one year.

Part 4: Miscellaneous

36. Presumption of paternity in respect of child born out of wedlock

If in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child.

37. Refusal to submit to taking of blood samples Please note the case of Botha v Dreyer (unreported case no 4421/08 (2008) ZAGPHC 395, 19 November 2008.)

If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.

38. Effect of subsequent marriage of parents on child

1)        A child born of parents who marry each other at any time after the birth of the child must for all purposes be regarded as a child born of parents married at the time of his or her birth.

2)        Subsection (1) applies despite the fact that the parents could not have legally married each other at the time of conception or birth of the child.

39. Rights of child born of voidable marriage

1)        The rights of a child conceived or born of a voidable marriage shall not be affected by the annulment of that marriage.

2)        No voidable marriage may be annulled until the relevant court has inquired into and considered the safeguarding of the rights and interests of a child of that marriage.

3)        Section 6 of the Divorce Act and section 4 of the Mediation in Certain Divorce Matters Act apply, with the necessary changes required by the context; in respect of such a child as if the proceedings in question were proceedings in a divorce action and the annulment of the marriage were the granting of a decree of divorce.

4)        Section 8(1) and (2) of the Divorce Act apply, with the necessary changes as the context may require, to the rescission or variation of a maintenance order, or an order relating to the care or guardianship of, or contact with, a child, or the suspension of a maintenance order or an order relating to contact with a child, made by virtue of subsection (3).

5)        A reference in any law-
a)        to a maintenance order or an order relating to the custody or guardianship of, or access to, a child in terms of the Divorce Act must be construed as a reference also to a maintenance order or an order relating to the custody or guardianship of, or access to, a child in terms of that Act as applied by subsection (3);
b)        to the rescission, suspension or variation of such an order in terms of the Divorce Act must be construed as a reference also to the rescission, suspension or variation of such an order in terms of that Act as applied by subsection (4).

6)        For purposes of this Act, the father of a child conceived of a voidable marriage where such marriage has been annulled is regarded to be in the same position as the father of a child who has divorced the mother of that child.

40. Rights of child conceived by artificial fertilization

1)        
a)        Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilization of one spouse, any child born of that spouse as a result of such artificial fertilization must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses had been used for such artificial fertilization.
b)        For the purpose of paragraph (a) it must be presumed, until the contrary is proved, that both spouses have granted the relevant consent.

2)        Subject to section 296, whenever the gamete or gametes of any person have been used for the artificial fertilization of a woman, any child born of that woman as a result of such artificial fertilization must for all purposes be regarded to be the child of that woman.

3)        Subject to section 296, no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilization and any person whose gamete has or gametes have been used for such artificial fertilization or the blood relations of that person, except when-
a)        that person is the woman who gave birth to that child; or
b)        that person was the husband of such woman at the time of such artificial fertilization.

 

41. Access to biographical and medical information concerning genetic parents

1)        A child born as a result of artificial fertilization or surrogacy or the guardian of such child is entitled to have access to-
a)        any medical information concerning that child’s genetic parents; and
b)        any other information concerning that child’s genetic parents but not before the child reaches the age of 18 years.

2)        Information disclosed in terms of subsection (1) may not reveal the identity of the person whose gamete was or gametes were used for such artificial fertilization or the identity of the surrogate mother.

3)        The Director-General: Health or any other person specified by regulation may require a person to receive counseling before any information is disclosed in terms of subsection (1).

Chapter 15 : Adoption

228. Adoption

A child is adopted if the child has been placed in the permanent care of a person in terms of a court order that has the effects contemplated in section 242.

 

229. Purposes of adoption

The purposes of adoption are to-
a)        protect and nurture children by providing a safe, healthy environment with positive support; and
b)        promote the goals of permanency planning by connecting children to other safe and nurturing family relationships intended to last a lifetime.

230. Child who may be adopted

1)        Any child may be adopted if-
a)        the adoption is in the best interests of the child;
b)        the child is adoptable; and
c)        the provisions of this Chapter are complied with.

2)        An adoption social worker must make an assessment to determine whether a child is adoptable.

3)        A child is adoptable if-
a)        the child is an orphan and has no guardian or caregiver who is willing to adopt the child;
b)        the whereabouts of the child’s parent or guardian cannot be established;
c)        the child has been abandoned;
d)        the child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected; or
e)        the child is in need of a permanent alternative placement.

231. Persons who may adopt child

1)        A child may be adopted-
a)        jointly by-
i)          a husband and wife;
ii)         partners in a permanent domestic life-partnership; or
iii)        other persons sharing a common household and forming a permanent family unit;
b)        by a widower, widow, divorced or unmarried person;
c)        by a married person whose spouse is the parent of the child or by a person whose permanent domestic life-partner is the parent of the child;
d)        by the biological father of a child born out of wedlock; or
e)        by the foster parent of the child.

2)        A prospective adoptive parent must be-
a)        fit and proper to be entrusted with full parental responsibilities and rights in respect of the child;
b)        willing and able to undertake, exercise and maintain those responsibilities and rights ;
c)        over the age of 18 years; and
d)        properly assessed by an adoption social worker for compliance with paragraphs (a) and (b).

3)        In the assessment of a prospective adoptive parent, an adoption social worker may take the cultural and community diversity of the adoptable child and prospective adoptive parent into consideration.

4)        A person may not be disqualified from adopting a child by virtue of his or her financial status.

5)        Any person who adopts a child may apply for means-tested social assistance where applicable.

6)        A person unsuitable to work with children is not a fit and proper person to adopt a child.

7)        
a)        The biological father of a child who does not have guardianship in respect of the child in terms of Chapter 3 or the foster parent of a child has the right to be considered as a prospective adoptive parent when the child becomes available for adoption.
b)        A person referred to in paragraph (a) must be regarded as having elected not to apply for the adoption of the child if that person fails to apply for the adoption of the child within 30 days after a notice calling on that person to do so has been served on him or her by the sheriff.

8)        A family member of a child who, prior to the adoption, has given notice to the clerk of the children's court that he or she is interested in adopting the child has the right to be considered as a prospective adoptive parent when the child becomes available for adoption.

232. Register on Adoptable Children and Prospective Adoptive Parents

1)        The Director-General must keep and maintain a register to be called the Register on Adoptable Children and Prospective Adoptive Parents for the purpose of-
a)        keeping a record of adoptable children; and
b)        keeping a record of fit and proper adoptive parents.

2)        The name and other identifying information of a child may be entered into RACAP if the child is adoptable as contemplated in section 230(3).

3)        The name and other identifying information of a child must be removed from RACAP if the child has been adopted.

4)        A person may be registered in the prescribed manner as a prospective adoptive parent if-
a)        section 231(2) has been complied with; and
b)        the person is a citizen or permanent resident of the Republic.

5)        Registration of a person as a prospective adoptive parent-
a)        is valid for a period of three years;
b)        may be renewed as prescribed;
c)        ceases-
i)          on written notice of withdrawal being given to the Director-General;
ii)         on the death of the registered person;
iii)        on cancellation by the Director-General if the registered person is no longer-
aa)      a fit and proper person to be entrusted with full parental responsibilities and rights in respect of a child; and
bb)      willing and able to undertake, exercise and maintain those responsibilities and rights.
iv)        if the registered person is no longer a citizen or permanent resident of the Republic;
v)         if a child contemplated in section 150 is removed from the care of that registered person; or
vi)        if the registered person is convicted of an offense involving violence.

6)        Only the Director-General and officials in the Department designated by the Director-General have access to RACAP, but the Director-General may, on such conditions as the Director-General may determine, allow access to-
a)        a provincial head of social development or an official of a provincial department of social development designated by the head of that department;
b)        a child protection organization accredited in terms of section 251 to provide adoption services; or
c)        a child protection organization accredited in terms of section 259 to provide inter-country adoption services.

233. Consent to adoption

1)        A child may be adopted only if consent for the adoption has been given by-
a)        each parent of the child, regardless of whether the parents are married or not: Provided that, if the parent is a child, that parent is assisted by his or her guardian;
b)        any other person who holds guardianship in respect of the child; and
c)        the child, if the child is-
i)          10 years of age or older; or
ii)         under the age of 10 years, but is of an age, maturity and stage of development to understand the implications of such consent.

2)        Subsection (1) excludes a parent or person referred to in section 236 and a child may be adopted without the consent of such parent or person.

3)        If the parent of a child wishes the child to be adopted by a particular person the parent must state the name of that person in the consent.

4)        Before consent for the adoption of the child is granted in terms of subsection (1), the adoption social worker facilitating the adoption of the child must counsel the parents of the child and, where applicable, the child on the decision to make the child available for adoption.

5)        The eligibility of the person contemplated in subsection (3) as an adoptive parent must be determined by a children's court in terms of section 231(2).

6)        Consent referred to in subsection (1) and given-
a)        in the Republic, must be-
i)          signed by the person consenting in the presence of a presiding officer of the children’s court;
ii)         signed by the child in the presence of a presiding officer of the children’s court if the consent of the child is required in terms of subsection (1)(c);
iii)        verified by the presiding officer of the children’s court in the prescribed manner; and
iv)        filed by the clerk of the children’s court pending an application for the adoption of the child; or
b)        outside the Republic, must be-
i)          signed by the person consenting in the presence of the prescribed person;
ii)         verified in the prescribed manner and by the prescribed person; and
iii)        submitted to and filed by a clerk of the children’s court pending an application for the adoption of the child.

7)        The court may on good cause shown condone any deficiency in the provision of a consent given outside the Republic in that the consent-
a)        was not signed in the presence of the prescribed person; or
b)        was not verified in the prescribed manner or by the prescribed person.

8)        A person referred to in subsection (1) who has consented to the adoption of the child may withdraw the consent within 60 days after having signed the consent, after which the consent is final.

234. Post adoption agreements

1)        The parent or guardian of a child may, before an application for the adoption of a child is made in terms of section 239, enter into a post-adoption agreement with a prospective adoptive parent of that child to provide for-
a)        communication, including visitation between the child and the parent or guardian concerned and such other person as may be stipulated in the agreement; and
b)        the provision of information, including medical information, about the child, after the application for adoption is granted.

2)        An agreement contemplated in subsection (1) may not be entered into without the consent of the child if the child is of an age, maturity and stage of development to understand the implications of such an agreement.

3)        The adoption social worker facilitating the adoption of the child must assist the parties in preparing a post-adoption agreement and counsel them on the implications of such an agreement.

4)        A court may, when granting an application in terms of section 239 for the adoption of the child, confirm a post-adoption agreement if it is in the best interests of the child.

5)        A post-adoption agreement must be in the prescribed format.

6)        A post-adoption agreement-
a)        takes effect only if made an order of court;
b)        may be amended or terminated only by an order of court on application-
i)          by a party to the agreement; or
ii)         by the adopted child.

236. When consent not required

1)        The consent of a parent or guardian of the child to the adoption of the child, is not necessary if that parent or guardian-
a)        Is incompetent to give consent due to mental illness;
b)        Has abandoned the child, or if the whereabouts of that parent of guardian cannot be established, or if the identity of that parent or guardian is unknown;
c)        Has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected;
d)        Has consistently failed to fulfil his or her parental responsibilities towards the child ruing the last 12 months;
e)        Has been divested by an order of court of the right to consent to the adoption of the child; or
f)          Has failed to respond to a notice of the proposed adoption referred to in section 238 within 30 days of service of the notice.

2)        Consent to the adoption of a child is not required if-
a)        The child is an orphan and has no guardian or caregiver who is willing and able to adopt the child; and
b)        The court is provided with certified copies of the child’s parent’s or guardian’s death certificate or such other documentation as may be required by the court.

3)        If the parent referred to in subsection (1) is the biological father of the child, the consent of that parent to the adoption is not necessary if-
a)        that biological father is not married to the child’s mother or was not married to her at the time of conception or at any time thereafter, and has not acknowledged in a manner set out in subsection (4) that he is the biological father of the child;
b)        the child was conceived from an incestuous relationship between that biological father and the mother; or
c)        the court, following an allegation by the mother of the child, finds on a balance of probabilities that the child was conceived as a result of the rape of the mother: Provided that such a finding shall not constitute a conviction for the crime of rape.

4)        A person referred to in subsection (3)(a) can for the purposes of that subsection acknowledge that he is the biological father of a child-
a)        by giving a written acknowledgment that he is the biological father of the child either to the mother or the clerk of the children's court before the child reaches the age of six months;
b)        by voluntarily paying maintenance in respect of the child;
c)        by paying damages in terms of customary law; or
d)        by causing particulars of himself to be entered in the registration of birth of the child in terms of section 10(1)(b) or section 11(4) of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992).

5)        A children’s court may on a balance of probabilities make a finding as to the existence of a ground on which a parent or person is excluded in terms of this section from giving consent to the adoption of a child.

238. Notice to be given of proposed adoption

1)        When a child becomes available for adoption, the presiding officer must without delay cause the sheriff to serve a notice on each person whose consent to the adoption is required in terms of section 233.

2)        The notice must-
a)        inform the person whose consent is sought of the proposed adoption of the child; and
b)        request that person either to consent to or to withhold consent for the adoption, or, if that person is the biological father of the child to whom the mother is not married, request him to consent to or withhold consent for the adoption, or to apply in terms of section 239 for the adoption of the child.

3)        If a person on whom a notice in terms of subsection (1) has been served fails to comply with a request contained in the notice within 30 days, that person must be regarded as having consented to the adoption.

239. Application for adoption order

1)        An application for the adoption of a child must-
a)        be made to a children's court in the prescribed manner;
b)        be accompanied by a report, in the prescribed format, by an adoption social worker containing-
i)          information on whether the child is adoptable as contemplated in section 230(3);
ii)         information on whether the adoption is in the best interests of the child;
and
iii)        prescribed medical information in relation to the child.
c)        be accompanied by an assessment referred to in section 231(2)(d);
d)        be accompanied by a letter by the provincial head of social development recommending the adoption of the child; and
e)        contain such prescribed particulars.

2)        When an application for the adoption of a child is brought before a children’s court, the clerk of the children’s court must submit to the court-
a)        any consent for the adoption of the child filed with a clerk of the children’s court in terms of section 233(6);
b)        any information established by a clerk of the children’s court in terms of section 237(2);
c)        any written responses to requests in terms of section 237(2);
d)        a report on any failure to respond to those requests; and
e)        any other information that may assist the court or that may be prescribed.

3)        An applicant has no access to any documents lodged with the court by other parties except with the permission of the court.

240. Consideration of adoption application

1)        When considering an application for the adoption of a child, the court must take into account all relevant factors, including-
a)        the religious and cultural background of-
i)          the child;
ii)         the child’s parent; and
iii)        the prospective adoptive parent;
b)        all reasonable preferences expressed by a parent and stated in the consent; and
c)        a report contemplated in section 239(1)(b).

2)        A children's court considering an application may make an order for the adoption of a child only if-
a)        the adoption is in the best interests of the child;
b)        the prospective adoptive parent complies with section 231(2);
c)        subject to section 241, consent for the adoption has been given in terms of section 233;
d)        consent has not been withdrawn in terms of section 233(8); and
e)        section 231(7) has been complied with, in the case of an application for the adoption of a child in foster care by a person other than the child’s foster parent.

241. Unreasonable withholding of consent

1)        If a parent or person referred to in section 233(1) withholds consent for the adoption of a child a children’s court may, despite the absence of such consent, grant an order for the adoption of the child if the court finds that-
a)        consent has unreasonably been withheld; and
b)        the adoption is in the best interests of the child.

2)        In determining whether consent is being withheld unreasonably, the court must take into account all relevant factors, including-
a)        the nature of the relationship during the last two years between the child and the person withholding consent and any findings by a court in this respect; and
b)        the prospects of a sound relationship developing between the child and the person withholding consent in the immediate future.

242. Effect of adoption order

1)        Except when provided otherwise in the order or in a post-adoption agreement confirmed by the court an adoption order terminates-
a)        all parental responsibilities and rights any person, including a parent, step-parent or partner in a domestic life partnership, had in respect of the child immediately before the adoption;
b)        all claims to contact with the child by any family member of a person referred to in paragraph (a);
c)        all rights and responsibilities the child had in respect of a person referred to in paragraph (a) or (b) immediately before the adoption; and
d)        any previous order made in respect of the placement of the child.

2)        An adoption order-
a)        confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent;
b)        confers the surname of the adoptive parent on the adopted child, except when otherwise provided in the order;
c)        does not permit any marriage or sexual intercourse between the child and any other person which would have been prohibited had the child not been adopted; and
d)        does not affect any rights to property the child acquired before the adoption.

3)        An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child.

243. Rescission of adoption order

1)        A High Court or children's court may rescind an adoption order on application by-
a)        the adopted child;
b)        a parent of the adopted child or other person who had guardianship in respect of the child immediately before the adoption; or
c)        the adoptive parent of the child.

2)        An application in terms of subsection (1) must be lodged within a reasonable time but not exceeding two years from the date of the adoption.

3)        An adoption order may be rescinded only if-
a)        rescission of the order is in the best interests of the child; and
b)        the applicant is a parent of the child whose consent was required for the adoption order to be made, but whose consent was not obtained; or
c)        at the time of making the adoption order the adoptive parent did not qualify as such in terms of section 231.

4)        Notice of an application for rescission of an adoption order must be given to -
a)        the adoptive parent of that child, if any other person brings the application;
b)        all persons who have consented to the adoption in terms of section 233 or who have withheld consent to the adoption in terms of section 241, if the child or the adoptive parent brings the application;
c)        the Central Authority in the case of an inter-country adoption; and
d)        any other person whom the court finds has a sufficient interest in the matter.

244. Effect of rescission

1)        As from the date on which the rescission of an adoption order takes effect-
a)        the effects of the adoption order as set out in section 242(2) and (3) no longer applies in respect of the child concerned; and
b)        all responsibilities, rights and other matters terminated by section 242(1) in respect of the child are restored.

2)        When rescinding an adoption order the court may-
a)        make an appropriate placement order in respect of the child concerned; or
b)        order that the child be kept in temporary

 

Chapter 19: Surrogate Motherhood

 

292. Surrogate motherhood agreement must be in writing and confirmed by High Court

1)        No surrogate motherhood agreement is valid unless-
a)        the agreement is in writing and is signed by all the parties thereto;
b)        the agreement is entered into in the Republic;
c)        at least one of the commissioning parents, or where the commissioning parent is a single person, that person, is at the time of entering into the agreement domiciled in the Republic;
d)        the surrogate mother and her husband or partner, if any, are at the time of entering into the agreement domiciled in the Republic; and
e)        the agreement is confirmed by the High Court within whose area of jurisdiction the commissioning parent or parents are domiciled or habitually resident.

2)        A court may, on good cause shown, dispose with the requirement set out in subsection (1)(d).

293. Consent of husband, wife or partner

1)        Where a commissioning parent is married or involved in a permanent relationship, the court may not confirm the agreement unless the husband, wife or partner of the commissioning parent has given his or her written consent to the agreement and has become a party to the agreement.

2)        Where the surrogate mother is married or involved in a permanent relationship, the court may not confirm the agreement unless her husband or partner has given his or her written consent to the agreement and has become a party to the agreement.

3)        Where a husband or partner of a surrogate mother who is not the genetic parent of the child unreasonably withholds his or her consent, the court may confirm the agreement.

294. Genetic origin of child

No surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person.

295. Confirmation by court

A court may not confirm a surrogate motherhood agreement unless-
a)        the commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible;
b)        the commissioning parent or parents -
i)          are in terms of this Act competent to enter into the agreement;
ii)         are in all respects suitable persons to accept the parenthood of the child that is to be conceived; and
iii)        understand and accept the legal consequences of the agreement and this Act and their rights and obligations in terms thereof;
c)        the surrogate mother-
i)          is in terms of this Act competent to enter into the agreement;
ii)         is in all respects a suitable person to act as surrogate mother;
iii)        understands and accepts the legal consequences of the agreement and this Act and her rights and obligations in terms thereof;
iv)        is not using surrogacy as a source of income;
v)         has entered into the agreement for altruistic reasons and not for commercial purposes;
vi)        has a documented history of at least one pregnancy and viable delivery;
and
vii)       has a living child of her own;
d)        the agreement includes adequate provisions for the contact, care, upbringing and general welfare of the child that is to be born in a stable home environment, including the child’s position in the event of the death of the commissioning parents or one of them, or their divorce or separation before the birth of the child; and
e)        in general, having regard to the personal circumstances and family situations of all the parties concerned, but above all the interests of the child that is to be born, the agreement should be confirmed.

 

296. Artificial fertilization of surrogate mother

 1)        No artificial fertilization of the surrogate mother may take place-
a)        Before the surrogate motherhood agreement is confirmed by the court;
b)        after the lapse of 18 months from the date of the confirmation of the agreement in question by the court.

2)        Any artificial fertilization of a surrogate mother in the execution of an agreement contemplated in this Act must be done in accordance with the provisions of the National Act, 2003 (Act No. 61 of 2003).

297. Effect of surrogate motherhood agreement on status of child

1)        The effect of a valid surrogate motherhood agreement is that-
a)        any child born of a surrogate mother in accordance with the agreement is for all purposes the child of the commissioning parent or parents from the moment of the birth of the child concerned;
b)        the surrogate mother is obliged to hand the child over to the commissioning parent or parents as soon as is reasonably possible after the birth;
c)        the surrogate mother or her husband, partner or relatives has no rights of parenthood or care of the child;
d)        the surrogate mother or her husband, partner or relatives have no right of contact with the child unless provided for in the agreement between the parties;
e)        subject to sections 292 and 293, the surrogate motherhood agreement may not be terminated after the artificial fertilization of the surrogate mother has taken place; and
f)          the child will have no claim for maintenance or of succession against the surrogate mother, her husband or partner or any of their relatives.

2)        Any surrogate motherhood agreement that does not comply with the provisions of this Act is invalid and any child born as a result of any action taken in execution of such an arrangement is for all purposes deemed to be the child of the woman that gave birth to that child.

298. Termination of surrogate motherhood agreement

1)        A surrogate mother who is also a genetic parent of the child concerned may, at any time prior to the lapse of a period of sixty days after the birth of the child, terminate the surrogate motherhood agreement by filing written notice with the court.

2)        The court must terminate the confirmation of the agreement in terms of section 295 upon finding, after notice to the parties to the agreement and a hearing, that the surrogate mother has voluntarily terminated the agreement and that she understands the effects of the termination, and the court may issue any other appropriate order if it is in the best interest of the child.

3)        The surrogate mother incurs no liability to the commissioning parents for exercising her rights of termination in terms of this section, except for compensation for any payments made by the commissioning parents in terms of section 301.

299. Effect of termination of surrogate motherhood agreement

The effect of the termination of a surrogate motherhood agreement in terms of section 298 is that-
a)        where the agreement is terminated after the child is born, any parental rights established in terms of section 297 are terminated and vest in the surrogate mother, her husband or partner, if any, or if none, the commissioning father;
b)        where the agreement is terminated before the child is born, the child is the child of the surrogate mother, her husband or partner, if any, or if none, the commissioning father, from the moment of the child’s birth;
c)        the surrogate mother and her husband or partner, if any, or if none, the commissioning father, is obliged to accept the obligation of parenthood;
d)        subject to paragraphs (a) and (b), the commissioning parents have no rights of parenthood and can only obtain such rights through adoption; and
e)        subject to paragraphs (a) and (b), the child has no claim for maintenance or of succession against the commissioning parents or any of their relatives.

300. Termination of pregnancy

1)        A surrogate motherhood agreement is terminated by a termination of pregnancy that may be carried out in terms of the Choice on Termination of Pregnancy Act, 1996 (Act No. 92 of 1996).

2)        For the purposes of the Choice on Termination of Pregnancy Act, 1996, the decision to terminate lies with the surrogate mother, but she must inform the commissioning parents of her decision prior to the termination and consult with the commissioning parents before the termination is carried out.

3)        The surrogate mother incurs no liability to the commissioning parents for exercising her right to terminate a pregnancy pursuant to this section except for compensation for any payments made by the commissioning parents in terms of section 301 where the decision to terminate is taken for any reason other than on medical grounds.

301. Payments in respect of surrogacy prohibited

1)        Subject to subsections (2) and (3), no person may in connection with a surrogate motherhood agreement give or promise to give to any person, or receive from any person, a reward or compensation in cash or in kind.

2)        No promise or agreement for the payment of any compensation to a surrogate mother or any other person in connection with a surrogate motherhood agreement or the execution of such an agreement is enforceable, except a claim for -
a)        compensation for expenses that relate directly to the artificial fertilisation and pregnancy of the surrogate mother, the birth of the child and the confirmation of the surrogate motherhood agreement;
b)        loss of earnings suffered by the surrogate mother as a result of the surrogate motherhood agreement; or
c)        insurance to cover the surrogate mother for anything that may lead to death or disability brought about by the pregnancy.

3)        Any person who renders a bona fide professional legal or medical service with a view to the confirmation of a surrogate motherhood agreement in terms of section 295 or in the execution of such an agreement, is entitled to reasonable compensation therefore.

302. Identity of parties

1)        The identity of the parties to court proceedings with regard to a surrogate motherhood agreement may not be published without the written consent of the parties concerned.

2)        No person may publish any facts that reveal the identity of a person born as a result of a surrogate motherhood agreement.

 

303. Prohibition of certain acts

1)        No person may artificially fertilize a woman in the execution of a surrogate motherhood agreement or render assistance in such artificial fertilization, unless that artificial fertilization is authorized by a court in terms of the provisions of this Act.

2)        No person may in any way for or with a view to compensation make known that any person is or might possibly be willing to enter into a surrogate motherhood agreement.

I HAVE INCLUDED THE FOLLOWING PAPER ON THE ESTABLISHMENT OF PARENTHOOD AND THE STATUS OF CHILDREN WHICH IS SELF-EXPLANATORY.

Introduction
In order to allocate parental rights and responsibilities, it is necessary to determine parentage. Rapid advances in medical science over the past few decades have made
the determination of parentage very problematic in certain areas, notably in cases
involving artificial fertilization techniques.

Legitimacy of children
As pointed out in the discussion paper, a legitimate child is one whose parents were
married to each other at the time of his or her conception or at the time of his or her
birth, or at any time in between these dates. Where the parent’s marriage, though
invalid, fulfils the requirements of a putative marriage, children born of the union are
legitimate for all purposes, and will on application be declared so by the court.
At common law, annulment of a voidable marriage rendered children born or conceived
of the union retrospectively extra-marital. In modern South African law, however, the
status of children born or conceived of a voidable marriage which is subsequently set
aside by the court is regulated by the Children’s Status Act 82 of 1987.5 In terms of this

Act, the annulment of the marriage has no effect on the status of children born or
conceived of it; such children retain their legitimate status and, if minor or dependent at
the time of the annulment, are treated as if the marriage had been terminated by a
decree of divorce.

Adoption, which is not confined to extra-marital children, is discussed fully in another
chapter. It is, however, important to point out that in terms of section 20(2) of the Child
Care Act, 1983, an adopted child shall for all purposes whatever be deemed in law to
be the legitimate child of the adoptive parent, as if he was born of that parent during the
existence of a lawful marriage.

In the past considerable disadvantages attached to being an adulterine child, and the
penalties for the fruit of incest were even greater. Today the notion that it is proper to
visit the sins of the parents upon their innocent children has happily passed away, and it
makes little difference into what class of illegitimacy a person falls.
No submissions were received on this issue.

In line with the Commission’s vision to move towards an inclusive, comprehensive,
single Act, it is recommended that sections 4, 6 and 7 of the Children’s Status Act 82 of
1987 be incorporated in the new Children’s Bill. These sections deal with situations
where the rights of a child are affected by the annulment of the marriage of the parents
of such a child. In this regard, the Commission further recommends that where a
marriage is annulled, the father is to be regarded as a divorced father rather than an
unmarried father.

Artificial insemination
Since the legitimacy of a child depends on the status of his or her parents at the relevant
time, it is necessary to determine who those parents are. As stated above, rapid
advances in medical science over the past few decades have made such determination
very problematic in certain cases, notably in cases involving so-called artificial
fertilization techniques.

Under the common law, a child born as a result of the artificial insemination of an
unmarried woman or as a result of the artificial insemination of a married woman with the
semen of a man other than her husband was ordinarily extra-marital even if, in the
latter case, the husband was a consenting party.

Section 5 of the Children’s Status Act 82 of 1987 brought about far-reaching changes to
the common law in this regard. In terms of section 5(1)(a), whenever the gamete or
gametes of any person other than a married woman or her husband have been used for
the artificial insemination of that woman with the consent of both spouses, any child born
as a result of such artificial insemination is deemed for all purposes to be the legitimate
child of the spouses. There is a rebuttable presumption that both spouses have in fact
granted their consent in this regard.

Section 5 of the Children’s Status Act 82 of 1987 does not apply to cases where an
unmarried woman has been artificially inseminated or a married woman has been
artificially inseminated with donor sperm without her consent or the consent of her
husband, with the result that the child in question will be considered extra-marital.
Section 5 of the Children’s Status Act 82 of 1987 also does not apply to an arrangement
involving a ‘pure’ ovum donation or a ‘pure’ embryo donation. After considering the
issue, the Commission recommends that section 5 of the Children’s Status Act 82 of
1987 be amended to also cover these three instances. Consequently, a similar
amendment of the definition of ‘artificial fertilisation’ in the Human Tissue Act 65 of 1983
might be opportune. These recommendations will be incorporated in the reformulation
of the present section 5 of the Children’s Status Act 82 of 1987. However, the
Commission does not consider it appropriate to extend the operation of section 5 of the
Children’s Status Act 82 of 1987 to instances where a woman (whether married or not)
has been artificially inseminated with donor sperm without her consent, or in the case of
a married woman, also without the consent of her husband. The Commission also
refrains from covering the situation where a child is born as a result of sexual intercourse
between the child’s mother and a man other than the mother’s husband. In the latter
instance, we specifically see a continued role for the common law.

The Commission affirms its preliminary recommendation in the discussion paper and
recommends that section 5 of the Children’s Status Act 82 of 1987, as to be amended,
be incorporated in the new Children’s Bill. The Commission further recommends that
the Minister for Social Development requests his colleague, the Minister for Health, to
ensure that the definition of ‘artificial fertilisation’ and the confidentiality provisions in the
Human Tissue Act 65 of 1983 be amended in line with the suggestions made in the
discussion paper.

The Commission would also like to reiterate its position that all legal ties between a child
and a donor of gametes with which the child was conceived be severed.
The Commission also recommends that neither the recipient nor the child should have
access to the information regarding the donor’s identity. However, the Commission is
convinced that children born as a result of artificial insemination procedures have a right
to have access to medical and biographical information concerning their genetic
parents. The Commission therefore recommends that the confidentiality provisions in
the Human Tissue Act 65 of 1983 be amended to allow children born of artificial
insemination access to medical and biographical information concerning their genetic
parents. However, access to biographical information should be limited to children over
the age of 18 years. We would like to stress that we see this as the right of the child,
and not that of the donor or recipient of the gametes.

The Commission therefore recommends that the Minister for Social Development
requests his colleague, the Minister for Health, to have the necessary amendments
affected to the Human Tissue Act 65 of 1983 to allow children such access.

Surrogate motherhood
A surrogate mother is a woman who (usually before becoming pregnant) agrees (for
financial or compassionate reasons) to bear a child for another person or for a couple
(the ‘commissioning' person or couple), with the explicit intention of handing over the
child to the commissioning person or couple after the birth. It is further intended by the
parties to this agreement that the child should become, for all legal purposes, the child of
the commissioning person or couple and that neither the surrogate mother (nor her
husband, if she is married) should have any parental rights or responsibilities in respect
of the child.

There is as yet no legislation in South Africa dealing specifically with surrogacy
arrangements, and the only way in which the commissioning person or couple can
become the legal parents of the child is by adopting such child, even if the surrogate
mother (and her husband, if she is married) are prepared to give effect to the surrogacy
agreement and hand over the child to the commissioning person or couple. Adoption
could give rise to problems in a situation of commercial surrogacy, since section 24 of
the Child Care Act criminalises the payment or receipt of remuneration in respect of the
adoption of a child, except as prescribed under the Social Work Act 110 of 1978 (which
exception is not relevant in the present context). Thus, under the present South African
law, if the surrogate mother breaches the agreement and refuses to hand over the child
to the commissioning person or couple, it seems likely that the South African courts will
regard the agreement as contra bones mores and hence unenforceable.

To give effect to the vision of a single comprehensive children’s statute, the Commission
recommended in the discussion paper that the provisions in the envisaged new
Surrogacy Act on the status of children born of surrogacy be mirrored in the new
children’s statute. In this context, it was recommended that a distinction between full
and partial surrogacy be maintained. In the case of full surrogacy, the Commission
recommended the establishment of direct parentage between the child born of surrogacy
and the commissioning parent(s) from the time of birth of that child. In this scenario, the
commissioning parent(s) would be entitled to register the child as their child immediately.

In the case of partial surrogacy, the Commission recommended the use of a ‘delayed
direct parentage’ model. In terms of this model, the commissioning parent(s) would
automatically become entitled to register the child as their child after a short ‘period of
grace’ (say 60 days) has lapsed after the birth of the child. The acquisition of parental
rights and responsibilities by the commissioning parent(s) is therefore merely delayed by
a ‘cooling-off period’ in which the surrogate mother has the right to change her mind and
keep the child. Should the surrogate mother decide to keep the child, then the
commissioning parents have no rights in respect of the child.
The effect of the recommendation is that direct parentage will be established for
children born of both partial and full surrogacy, with one difference, as explained above.
In the case of full surrogacy, if the child is with the commissioning parents, then the child
will grow up with at least one genetic parent. If the child grows up with the surrogate
mother, then the child will not be growing up with any genetic parent at all. In the case
of partial surrogacy, the child will grow up with at least one genetic parent (either the
surrogate mother or commissioning parent(s)).

In addressing the scope of the investigation the Commission reconsidered its position in
regards to its preliminary recommendation to include a mirror provision on the status of
children born of surrogacy in the Children’s Bill.24 As this provision, in the format
suggested, should anyway appear in the envisaged new Surrogacy Act, it was
recommended by some respondents that it makes little sense to restate the position in
the Children’s Bill. However, in line with the Commission’s vision to present a
comprehensive statute, the Commission recommends that provisions on the status of
children born of surrogacy be included in the Children’s Bill. These provisions should
deal with the effect of the surrogate motherhood agreement on the status of the child,
the termination of such agreement, and the effect of the termination of the agreement on
the status of the child.

The Commission recommends that, similar to children born of artificial insemination,
children born of surrogacy should have access to medical and biographical information
concerning their genetic parents. However, information to biographical information
should be restricted to children over the age of 18 years. Medical or biographical
information so revealed may not result in identifying the genetic parents or surrogate
mother. Furthermore, the Minister for Social Development should requests the
Minister responsible for the administration of the Human Tissue Act 65 of 1983 to
amend the confidentiality provisions of that Act to allow children such access.


IN LIEU OF THE CASE OF GOVERNMENT OF THE RSA AND OTHERS V GROOTBOOM AND OTHERS 2001(1)SA 46, AS WELL AS THE CHILDREN’S CLAUSE I HAVE ALSO INCLUDED THE FOLLOWING SECTIONS OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA NO. 108 OF 1996


CHAPTER 2: BILL OF RIGHTS

7. Rights.-( 1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines
the rights of all people in our country and affirms the democratic values of human
dignity, equality and freedom.
(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations contained or referred to
in section 36, or elsewhere in the Bill.

8. Application.--(l) The Bill of Rights applies to all law, and binds the legislature, the
executive, h e .judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the
extent that, it is applicable, taking into account the nature of the right and the nature of any
duty imposed by their right.
(3) When applying a provision of the Bill of Rights to a natural or juristic person in
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop,
the common law to the extent that legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided that the
limitation is in accordance with section 36 (1).
(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required
by the nature of their rights and the nature of that juristic person.
(- 3.Everyone is equal before the law and has the right to equal protection
and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. '.: promote
the achievement of equality, legislative and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one
or more grounds in terms of subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination is fair.
10. Human dignity.-Everyone has inherent dignity and the right to have their dignity
respected and protected.
11. Life.-Everyone has the right to life.
12. Freedom and security of the person.-(1) Everyone has the right to freedom and
security of the person, which includes the right -
(.) not to be deprived of freedom arbitrarily or without just cause;
(6) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which includes the right-
(.) to make decisions concerning reproduction;
(h) to security in and control over their body; and
(e) not to be subjected to medical or scientific experiments without their informed
consent.
13. Slavery, servitude and forced labour.-No one may be subjected to slavery, servitude
or forced labour.
14. Privacy.-Everyone has the right to privacy, which includes the right not to have-
(a) their person or home searched;
(6) their property searched;
(c) their possessions seized; or
(4 the privacy of their communications infringed.
15. Freedom of religion, belief and opinion.-(1) Everyone has the right to freedom
of conscience, religion, thought, belief and opinion. -
26. Housing.-( 1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available
resources, to achieve their progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without
an order of court made after considering all the relevant circumstances. No legislation may
permit arbitrary evictions.
27. Health care, food, water and social security.-(1) Everyone has the right to have
access t o -
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their
dependants, appropriate social assistance.
(2) The state must take reaso1:able legislative and other measures, within it3 available
resources, to achieve the progressive realisation of each of these rights.
(3) No one may be refused emergency medical treatment.
28. Children.-(1) Every child has the right-
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when removed
from the family environment;
(e) to basic nutrition, shelter, basic health care services and social services;
(4 to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
U, not to be required or permitted to perform work or provide services that-
(i) are inappropriate for a person of that child’s age; or
(ii) place at risk the child’s well-being, education, physical or mental health or
spiritual, moral or social development;
(g> not to be detained except as a measure of last resort, in which case, in addition
to the rights a child enjoys under sections 12 and 35, the child may be detained
only for the, shortest appropriate period of time, and has the right to be -
(i) kept separately from detained persons over the age of l S years; and
(ii) treated in a manner, and kept in conditions, that take account of the child’s
age;
(h) to have a legal practitioner assigned to the child by the state, and at state expense,
in civil proceedings affecting the child, if substantial injustice would otherwise
result; and
(i) not to be used directly in armed conflict, and to be protected in times of armed
conflict.
(2) A child’s best interests are of paramount importance in every matter concerning the
child.
(3) In this section “child” means a person under the age of 18 years.
29. Education.--(l) Everyone has the right-
(a) to a basic education, including adult basic education; and
(b) to further education, which the state, through reasonable measures, must make
progressively available and accessible.