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Rights of a child conceived by artificial fertilisation

Section 40 of the Children's Act states:

Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses had been used for such artificial fertilisation. Until the contrary is proved, both spouses have granted the relevant consent. Whenever the gamete or gametes of any person have been used for the artificial fertilisation of a woman, any child born of that woman as a result of such artificial fertilisation must for all purposes be regarded to be the child of that woman. No right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when that person is the woman who gave birth to that child; or that person was the husband of such woman at the time of such artificial fertilisation.

The Act therefore provides that a child who is born as a result of the artificial fertilisation of a spouse using a donor gamete must for all purposes be regarded to be the spouse's child as if the gamete had been used for such artificial fertilisation. In other words, the donor's biological contribution will be ignored and the donor does not qualify as being the child's biological parent. There is also a presumption in the act that both spouses have consented to the fertilisation.  The Act refers to 'spouse' or 'spouses'.

Although the terms "married", "spouse" and "spouses" are used in the Act it is not open to the same Constitutional attack under the previous legislation. Therefore a child that is born as a result of artificial fertilisation in a legal same sex partnership in terms of a Civil Union is now treated in exactly the same method as a child who is born as a result of the artificial fertilisation of a spouse who is party to a civil marriage.

In the case of the artificial fertilisation of an unmarried woman with a donor gamete or donor gametes, the child will be regarded as the child of his/her unmarried birth mother, but the biological contribution of the donor of the gametes is not disregarded and the donor may well qualify as the child's biological parent.

No rights, duties or obligations is bestowed upon a donor in respect of the child born as a result of artificial fertilisation save for what was pointed out above, unless the donor is the child's birth mother, or her husband at the time of the artificial fertilisation.

By Bertus Preller

Family Law Attorney

KWJ Inc. Cape Town

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