South Africa’s Children’s Act, No. 38 of 2005 (the “Children’s Act”), specifically Chapter 3, regulates the acquisition and loss of parental responsibilities and rights. Acquisition includes both the automatic acquisition, by operation of the law, and the assignment of guardianship and care to a third party in terms of the Children’s Act, by the holder of parental responsibilities and rights in relation to a child. Despite Chapter 3 of the Children’s Act providing a measure of clarity on the acquisition and loss of parental responsibilities and rights and prescribing certain instances and methods for both of these, this area of South African law is complicated and frequently contested by parents in our Courts.
The acquisition of parental responsibilities and rights or the determination of legal parenthood, traditionally depended on the legitimate status of the child in question. The mother who gave birth to the child would automatically be assigned full parental responsibilities and rights (or her guardian in the instance of the mother being under the age of 18 years old). The biological father of a child would obtain full parental responsibilities and rights in respect of the child in certain prescribed instances e.g. married to the child’s mother.
However, as medical science and assisted reproductive medicine advances, the context and possibilities in which such parental responsibilities and rights are to be decided has become increasingly complex. More specifically, the acquisition of full parental responsibilities and rights in the case of artificially conceived children is often unregulated or even discussed by the professional involved in the ART treatment. The increase in instances of known gamete donation using family members or close friends, surrogacy (traditional and gestational carriers) and more recently ‘co-parenting’, has seen a marked increase in disputes between partners about who does or doesn’t have parental responsibilities and rights, particularly in instances where there is no formal agreement in place.
Fertility Law will assist the parties in navigating the law surrounding parental responsibilities and rights and will provide the parties with carefully drafted and considered agreements. Where necessary, we will have these agreements confirmed by the High Court.
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