Masters Degrees (Private Law)

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Browsing Masters Degrees (Private Law) by browse.metadata.advisor "Horsten, Debbie"

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    An analysis of the rationale behind the inclusion of the genetic link requirement in surrogate motherhood agreements in the Children's Act 17 of 2005
    (Stellenbosch : Stellenbosch University, 2018-03) Wallendorf, Bianke; Horsten, Debbie; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This thesis seeks to analyse the rationale behind the inclusion of the genetic link requirement, contained in section 294 of the Children’s Act 38 of 2005 (“Children’s Act”) in surrogate motherhood agreements. Infertility has become a global phenomenon, making assisted reproductive technology more relevant than ever. Surrogacy, as one form of assisted reproductive technology, enables people who aspire to become parents to have a child (or children), by making use of a surrogate mother to do so. This is done by way of a surrogate motherhood agreement, which is regulated extensively by the Children’s Act. The Children’s Act sets out many requirements for a valid surrogate motherhood agreement. This dissertation entails an analysis of the genetic link requirement, which requires a genetic link between the child born pursuant to the surrogate motherhood agreement and at least one commissioning parent. In essence, this thesis considers the reasoning behind the inclusion of the requirement, which was confirmed as being constitutional in AB (CC) 2016 ZACC 43, in the Children’s Act. It considers the process of regulating surrogacy in South Africa, focussing particularly on the origin of the genetic link requirement, and the decision of the legislature to include the requirement in the Children’s Act. In order to provide context, the legal position in South Africa regarding this requirement is briefly compared with that of India and Greece; the former also requiring a genetic link, the latter legal system not containing such requirement. Since the genetic link requirement is a contentious requirement in South Africa, the conflicting jurisprudence dealing with the requirement is considered in detail. By extracting the rationales for the genetic link requirement contained in the preparatory documents used by the legislature in the enactment of section 294 of the Children’s Act, as well as those contained in the jurisprudence, it is suggested that the two primary rationales for the inclusion of the genetic link requirement in the Children’s Act is the genetic origin rationale and the adoption rationale. This thesis examines both rationales extensively, taking into account that children’s best interests are of paramount importance, and that South Africa has a unique context of poverty and racial inequality following the apartheid regime – the predecessor of a democratic South Africa.
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    The effect of the acquisition of parental responsibilities and rights on the realisation of the right to parental care of children born to unmarried parents
    (Stellenbosch : Stellenbosch University, 2020-03) Rutgers, Joshua Leon; Horsten, Debbie; Johnson, Ebrezia; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: Section 28(1)(b) of the Constitution guarantees every child the right to parental care. It is this right that forms the basis of the research. The content of the right to parental care in South African law is considered in order to identify the persons responsible for the realisation of this right, as well as to highlight what such right entails. The thesis also considers the content of the right to parental care in terms of international law, as the international law position arguably informs South Africa’s interpretation of the right to parental care. The primary aim of this thesis is to determine whether South African civil, customary and/or Muslin personal law limit the right to parental care of children born to unmarried parents. In order to determine this, the rules regulating the acquisition of parental responsibilities and rights are considered, as it is the exercise of such responsibilities and rights that ensures that the child’s right to parental care is realised. Section 28(2) of the Constitution provides that the best interests of the child are of paramount importance in every matter concerning the child. Such matters include the child’s right to parental care and the acquisition of parental responsibilities and rights. The right to parental care must, therefore, be interpreted in light of section 28(2) of the Constitution, resulting in the child being entitled to parental care that is in his or her best interests. This thesis, therefore, further aims to determine whether the manner in which the legal systems under consideration regulate the acquisition of parental responsibilities and rights is in the best interests of children born to unmarried parents. It is argued that the failure of South African civil, customary and Muslim personal law to allow both unmarried biological parents to acquire parental responsibilities and rights automatically, limits the right to parental care of children born to unmarried parents, is not in accordance with the best interests of those children, and unfairly discriminates against such children. It is contended that both biological parents should automatically acquire parental responsibilities and rights, without qualification, and that such responsibilities and rights should only be interfered with if they are exercised in a manner which is contrary to the best interests of the child.