Masters Degrees (Private Law)

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Browsing Masters Degrees (Private Law) by Subject "Children's rights"

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    An 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.
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    Realising children’s right to participation during the divorce proceedings of parents
    (Stellenbosch : Stellenbosch University, 2021-12) Prinsloo, Marli; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: To a child, the divorce of his or her parents is a traumatic and life-altering event. The divorce of parents and the proceedings related thereto have the potential to determine how various aspects of a child’s life, such as where they will live and go to school or how often they will have contact with the parent with whom they do not live, will develop. Based hereupon it is safe to say that a child’s parents’ divorce and related proceedings can greatly affect a child. In terms of article 12 of the United Nations Convention on the Rights of the Child, article 4(2) of the African Charter of the Rights and Welfare of the Child as well as sections 10 and 31(1) of the Children’s Act 38 of 2005, a child, who is capable to do so, has the right to participate in matters that affect him or her by sharing his or her views and having these views considered. Despite having a clear and well-established right to participate in a matter that so deeply affects them, a child’s right to participate in their parents’ divorce related proceedings is often not realised. This thesis will evaluate the various methods of representation and direct participation employed to give effect to the child’s right to participation to determine to what extent the child’s right to participation is being realised or not realised. It is generally accepted that litigation is not the ideal way in which to resolve divorce and related proceedings, especially when children are involved. This thesis attempts to determine whether family mediation as model is better suited to realise a child’s right to participation in this particular context. It does so be placing family mediation as a model in contrast with the traditional legal processes that go hand in hand with divorce related litigation. To achieve the abovementioned, a model of measuring children’s participation is proposed. The proposed model highlights the shortcomings as well as the positive aspects of the various methods of children’s participation in South Africa. This exercise is repeated in the context of Australian divorce related proceedings in an attempt to compare and contrast the two jurisdictions. Finally, the model is also employed to measure mediation as a model to realise a child’s right to participation, in aid of determining whether mediation as a model is better suited to realise a child’s right to participation in his or her parents’ divorce related matters.