Building families through Assisted Reproductive Technologies in South Africa: a critical legal analysis

Abstract

The advent of ARTs has enabled many individuals to have children and build families. Although ARTs have from the start been designated to serve as alternative way for heterosexual infertile individuals and couples to have genetically related children, ARTs are nowadays widely used by gays and lesbians to have even genetically unrelated children and build their families. This study addresses the well-being of children born as a result of ARTs and growing up in homosexual families in South Africa. South Africa has legalised homosexual unions, granting gays and lesbians several rights, including the right to marry, use ARTs to reproduce, and build families in which they raise their children. South Africa has also provided constitutional and statutory protection of children’s rights and has further required that the child’s best interests be considered as paramount in every matter concerning the child. Although ARTs may have allowed people to have children, they have proven to put the child’s interests at risk. ARTs are associated with several physical and psychological problems for resulting children. The legal protection provided for those children seems to be inadequate in respect of their best interests. Unlike Australian statutes that have provided strong protection for the child’s best interests, South African legislations regulating ARTs are far from protecting ART-born children’s interests. The application of the child’s best interests criterion to ART procedures has revealed that in the USA and Australia efforts of the state, ART providers and parents have been centred on the transfer of the custody of the ART-born child to the commissioning parent(s). Although in South Africa the application of the child’s best interests in the context of surrogacy procedures has revealed the protection of the child’s interests, it should be noted that that protection seems to focus on the child’s post-birth period. This situation leaves ART-born children without any protection, especially before their birth. In order to give effect to section 28 of the Constitution of the Republic of South Africa, 1996 and protect ART-born children’s interests, I make certain proposals for law reform in the final chapter of this thesis.