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text book “South African Law of Persons” are not in line with the Children’s Act, 2005 (Act No.38 of 2005), hence is outdated.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-
b) the
attitude of the parents, or any specific parent, towards-
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-
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;
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;
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.
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.
4) Virginity
testing of children under the age of 16 is prohibited.
5) Virginity
testing of children older than 16 may only be performed-
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
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-
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-
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.
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
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-
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;
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-
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;
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
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
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-
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-
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;
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-
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
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;
c) in
the child’s interest, by any other person acting with leave of the court.
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
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.
3) A
child is adoptable if-
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
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
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
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.
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.
b) the
person is a citizen or permanent resident of the Republic.
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;
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
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;
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-
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.
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-
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-
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
ii) information
on whether the adoption is in the best interests of the child;
and
iii) prescribed
medical information in relation to the child.
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);
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;
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;
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
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
b) a parent of the adopted child or other person who
had guardianship in respect of the child immediately before the adoption; or
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
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;
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;
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
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
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.
