Advanced Family Law elective - Class notes - Units 1 to 3

Private Law 452
(Family Law)

,Contents
1 Introduction................................................................................................................................ 1

2 Surrogacy .................................................................................................................................. 2

3.1 Parental responsibilities and rights ....................................................................................... 10

3.2 Intersex children and the parent-child relationship ............................................................... 22




1

,1 Introduction
To what extent should society use the law to enforce its moral judgments?
Constitution
Section 9 – Equality
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Section 10 – Dignity
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Section 12 – Freedom and security of the person
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Section 14 – Privacy
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Section 15 – Freedom of religion, conviction and opinion
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Section 28 – Children’s rights
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Section 30 – Language and Culture
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Children’s Act
Chapter 19 – Surrogate motherhood




1

, 2 Surrogacy
Kim Kardashian and Kanye West
- Used surrogate to have kid
- Used own gametes to have the kid
Australian horrible couple
- Commissioned Asian woman to have baby for them
- Woman was carrying twins – one was to be born with down syndrome
- Couple chose only to take the baby that didn’t have down syndrome
- Commissioned Asian woman was now left with the baby with down syndrome
International convention on surrogacy project – HCCH
Background
SA only allows for altruistic surrogacy where surrogate receives no compensation
South African Law Commission Report on Surrogate Motherhood 1993
Discussion Paper on the Report and Draft Children’s Bill on the Review of the Child Care 2002
Boni mores
Altruistic surrogacy VS commercial surrogacy
- Altruistic =
- Commercial =
Surrogacy in SA
SA is one of the few countries legislatively regulating for surrogacy
Ch 19 of Children’s Act
- Section 1 – “surrogate motherhood agreement”
o Agreement between a SURROGATE MOTHER and a COMMISSIONING PARENT in
which it is agreed that the surrogate mother will be artificially fertilised for the purpose
of bearing a child for the commissioning parent and in which the surrogate mother
undertakes to hand over such a child to the commissioning parent upon its birth, or
within a reasonable time thereafter, with the intention that the child concerned
becomes the legitimate child of the commissioning parent
Types (implied from ss 293, 298, 299)
- Partial
o Surrogate also genetically linked to child she’s carrying
o Her egg was used and commissioning father’s sperm
- Full
o Both commissioning parents are genetically linked to child
o BUT can still be instance of single parent → still need another gamete donor – would
still be considered ‘full’

2