CHILDREN BORN TO
UNMARRIED PARENTS
• CHILDRENS ACT 38 OF 2005- refer to children with reference to
martial status of parents therefore “born to married parents” or
“born to “unmarried parents”
• Pre Children's Act, there was a differentiation btw legitimate &
illegitimate child
CHILDREN BORN TO MARRIED PARENTS
• Legally married= married @ time of conception/ birth/ any
intervening time
Marriage Includes:
1. Civil Marriage (1 man +1 woman)
2. Customary Marriage- marriage recognized in terms of Customary
Marriage Act.
3. Civil Union- recognized- Civil Union Act ( same sex/ heterosexual
marriage)
4. Religious Marriage includes Muslim and Hindu marriage.
If a child’s parents are not party to the @ birth/ conception/
at any intervening time before child is born then the child is born
to UNMARRIED PARENTS
NATURAL CHILDREN: parents NOT MARRIED but could be validly
3 types of married to each other
children ADULTERINE CHILDREN: one/ both parents married to another
born to person at time of conception
unmarried INCESTUOUS CHILDREN: parents cannot be validly married as
parents they too closely related to be married to each other
, ARTIFICAL FERTILIZATION
• “ a means of conception other than by sex”
• Introduce male gamete into female internal reproductive organs for purpose of
human reproduction.
• Female & male gamete can be joined outside body using invitro fertilization.
TYPES OF ARTIFICAL FERTILIZATION….
1. SURROGACY- CHAPTER 19 of children's act
• Surrogate mother artificially fertilized to bear child for commissioning parent/s and
hand over child @ birth/ within reasonable time so that child is considered “born”
of commissioning parent/s.
• Based on SURROGACY AGREEMENT
• It can only be entered into for altruistic reasons not commercial reasons
• Both parties sign & validate agreement
• High court must commission agreement in domiciled area
• Precreation must happen within 18 months of signing
• Child must be genetically related to at least 1 of commissioning parents.
• If agreement invalid, surrogate mom deemed to be child's mother and
relationship btw child & commissioning parents is void.
• If surrogate generic parent- she can cancel contract 60 days after birth- by
Therefore: filing notice at court.
If a wife uses a sperm
2. SINGLE MOM FERTLIZATION
donor unconsented
• SINGLE WOMAN uses artificial insemination= child born of UNMARRIED PARENTS
whilst in a marriage, the
lawful husband will not 3. TWO MARRIED PARENTS BOTH CONSENTING
be liable for • Mom and husband married both consent= child born to married parents.
maintenance and the • Therefore husband has full parental rights & responsibilities over child's.
child will be born to
unmarried parents! 4. TWO MARRIED PARENTS HUSBAND DOES NOT CONSENT
• Mom fertilizes without husbands consent
• HUSBANDS IS NOT RESPONSIBLE FOR MAINTENANCE
• CHILD BORN TO UNMARRIED PARENTS!
BUT if the semen is from a husband/ civil union THE CHILD WILL BE BORN TO
MARRIED PARENTS. Regardless of whether he consented.
Before the sec (40) Children's ACT… woman in same sex life partnerships had a
problem
J v Director General Department of Home • Sec (5) was amended & term
Affairs “married” was extended to include
• 2 woman same sex life partnership permanent same sex life partners.
• Used 1 woman's egg and the other • Children's Act repealed Children's
woman pregnant Status Act
• DGHA refused to register child born to • This was done BECAUSE… same sex
married parents as parents need to be life partnership DID not have same
married. rights as same sex couple of civil
• Court therefore held Sec 5 of Children union. Therefore this was not part of
Status Act was unconstitutional. Sec (40) and deemed
UNCONSTITUTIONAL
UNMARRIED PARENTS
• CHILDRENS ACT 38 OF 2005- refer to children with reference to
martial status of parents therefore “born to married parents” or
“born to “unmarried parents”
• Pre Children's Act, there was a differentiation btw legitimate &
illegitimate child
CHILDREN BORN TO MARRIED PARENTS
• Legally married= married @ time of conception/ birth/ any
intervening time
Marriage Includes:
1. Civil Marriage (1 man +1 woman)
2. Customary Marriage- marriage recognized in terms of Customary
Marriage Act.
3. Civil Union- recognized- Civil Union Act ( same sex/ heterosexual
marriage)
4. Religious Marriage includes Muslim and Hindu marriage.
If a child’s parents are not party to the @ birth/ conception/
at any intervening time before child is born then the child is born
to UNMARRIED PARENTS
NATURAL CHILDREN: parents NOT MARRIED but could be validly
3 types of married to each other
children ADULTERINE CHILDREN: one/ both parents married to another
born to person at time of conception
unmarried INCESTUOUS CHILDREN: parents cannot be validly married as
parents they too closely related to be married to each other
, ARTIFICAL FERTILIZATION
• “ a means of conception other than by sex”
• Introduce male gamete into female internal reproductive organs for purpose of
human reproduction.
• Female & male gamete can be joined outside body using invitro fertilization.
TYPES OF ARTIFICAL FERTILIZATION….
1. SURROGACY- CHAPTER 19 of children's act
• Surrogate mother artificially fertilized to bear child for commissioning parent/s and
hand over child @ birth/ within reasonable time so that child is considered “born”
of commissioning parent/s.
• Based on SURROGACY AGREEMENT
• It can only be entered into for altruistic reasons not commercial reasons
• Both parties sign & validate agreement
• High court must commission agreement in domiciled area
• Precreation must happen within 18 months of signing
• Child must be genetically related to at least 1 of commissioning parents.
• If agreement invalid, surrogate mom deemed to be child's mother and
relationship btw child & commissioning parents is void.
• If surrogate generic parent- she can cancel contract 60 days after birth- by
Therefore: filing notice at court.
If a wife uses a sperm
2. SINGLE MOM FERTLIZATION
donor unconsented
• SINGLE WOMAN uses artificial insemination= child born of UNMARRIED PARENTS
whilst in a marriage, the
lawful husband will not 3. TWO MARRIED PARENTS BOTH CONSENTING
be liable for • Mom and husband married both consent= child born to married parents.
maintenance and the • Therefore husband has full parental rights & responsibilities over child's.
child will be born to
unmarried parents! 4. TWO MARRIED PARENTS HUSBAND DOES NOT CONSENT
• Mom fertilizes without husbands consent
• HUSBANDS IS NOT RESPONSIBLE FOR MAINTENANCE
• CHILD BORN TO UNMARRIED PARENTS!
BUT if the semen is from a husband/ civil union THE CHILD WILL BE BORN TO
MARRIED PARENTS. Regardless of whether he consented.
Before the sec (40) Children's ACT… woman in same sex life partnerships had a
problem
J v Director General Department of Home • Sec (5) was amended & term
Affairs “married” was extended to include
• 2 woman same sex life partnership permanent same sex life partners.
• Used 1 woman's egg and the other • Children's Act repealed Children's
woman pregnant Status Act
• DGHA refused to register child born to • This was done BECAUSE… same sex
married parents as parents need to be life partnership DID not have same
married. rights as same sex couple of civil
• Court therefore held Sec 5 of Children union. Therefore this was not part of
Status Act was unconstitutional. Sec (40) and deemed
UNCONSTITUTIONAL
