Browsing by Author "Wallendorf, Bianke"
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- ItemAn analysis of the rationale behind the inclusion of the genetic link requirement in surrogate motherhood agreements in the Children's Act 17 of 2005(Stellenbosch : Stellenbosch University, 2018-03) Wallendorf, Bianke; Horsten, Debbie; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: This thesis seeks to analyse the rationale behind the inclusion of the genetic link requirement, contained in section 294 of the Children’s Act 38 of 2005 (“Children’s Act”) in surrogate motherhood agreements. Infertility has become a global phenomenon, making assisted reproductive technology more relevant than ever. Surrogacy, as one form of assisted reproductive technology, enables people who aspire to become parents to have a child (or children), by making use of a surrogate mother to do so. This is done by way of a surrogate motherhood agreement, which is regulated extensively by the Children’s Act. The Children’s Act sets out many requirements for a valid surrogate motherhood agreement. This dissertation entails an analysis of the genetic link requirement, which requires a genetic link between the child born pursuant to the surrogate motherhood agreement and at least one commissioning parent. In essence, this thesis considers the reasoning behind the inclusion of the requirement, which was confirmed as being constitutional in AB (CC) 2016 ZACC 43, in the Children’s Act. It considers the process of regulating surrogacy in South Africa, focussing particularly on the origin of the genetic link requirement, and the decision of the legislature to include the requirement in the Children’s Act. In order to provide context, the legal position in South Africa regarding this requirement is briefly compared with that of India and Greece; the former also requiring a genetic link, the latter legal system not containing such requirement. Since the genetic link requirement is a contentious requirement in South Africa, the conflicting jurisprudence dealing with the requirement is considered in detail. By extracting the rationales for the genetic link requirement contained in the preparatory documents used by the legislature in the enactment of section 294 of the Children’s Act, as well as those contained in the jurisprudence, it is suggested that the two primary rationales for the inclusion of the genetic link requirement in the Children’s Act is the genetic origin rationale and the adoption rationale. This thesis examines both rationales extensively, taking into account that children’s best interests are of paramount importance, and that South Africa has a unique context of poverty and racial inequality following the apartheid regime – the predecessor of a democratic South Africa.