Research Articles (Private Law)
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Browsing Research Articles (Private Law) by Subject "Children’s Act 38 of 2005"
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- ItemCertainty about surrogacy(Juta Law Publishing, 2010-09) Mills, LizeSummary: With the recent coming into operation of Chapter 19 of the Children’s Act 38 of 2005 on 1 April 2010, the previous legal position relating to surrogacy has been completely altered. Prior to the commencement of these provisions of the Act, commissioning persons in a surrogacy relationship had to adopt the artificially conceived child in terms of the Child Care Act 74 of 1983. In June 2009, at a time when the Child Care Act was still in force, the North Gauteng High Court found, inter alia, that the adoption procedure may be ignored and that the commissioning parents will automatically be regarded as the child’s parents. The Court provided no reasons for its decision. Since the most important question in a legal, moral, religious and philosophical issue such as surrogacy is to determine the parental responsibilities and rights of the parties involved, it was of the utmost importance that the previous unsatisfactory and confusing position be clarified. This note aims to explain the background to the Court’s order and to evaluate the decision in view of the legal position applicable at the time. It also discusses the possible implications of this order as well as the certainty which the amendments to the law, in terms of Chapter 19 of the Children’s Act, will hopefully bring.