Surrogate motherhood is one of the most controversial issues
of our time. The increase in infertility and the shortage of
babies available for adoption, have provided an incentive
for research in assisted reproductive techniques. Rapid
advances in this field have caught the legal system
unprepared in many ways.
The object of this thesis is to investigate the legal
aspects of surrogate motherhood. A background is provided
by an in depth examination and analysis of the practice of
surrogacy in foreign jurisdictions. For this purpose a
selection of interdisciplinary, medical and juridical
reports, court decisions and legislation is analysed.
The surrogacy agreement is affected by principles of both
public and private law. As the agreement is based on
consensus between the parties, Roman Law principles of the
law of obligations, provided a valuable point of departure
in establishing a theoretical basis for the classification
of surrogacy agreements. Having determined the nature of the
agreement, the content is analysed with due regard to
statutory and other relevant considerations, such as the
boni mores, and submissions made regarding the
enforceability and legality of such agreements.
A surrogate mother agreement model is proposed and analysed
in the light of existing South African law. The various ways
in which surrogacy contracts may be breached are examined
and recommendations put forward regarding possible delictual
or contractual remedies.
The legal relationship between the surrogate child and its
gestational (birth) mother and her husband on the one hand
and the intended parents on the other is investigated.
The role of the courts in custody issues - related to
surrogacy - is examined and recommendations put forward as
to how they may be included in the process by determining
the best interest of the surrogate child prior to artificial
insemination.
The civil and criminal liability of medical practitioners
involved in assisted reproductive technology and
specifically surrogacy are expounded. Key issues in the
practice of surrogate motherhood are interpreted in the
light of existing statutory and common law principles.
Recommendations are put forward on these issues and a bill
proposed for the regulation of surrogate motherhood in South
Africa. / Private Law / LLD
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:uir.unisa.ac.za:10500/22948 |
| Date | 06 1900 |
| Creators | Pretorius, Diederika, 1951- |
| Contributors | Strauss, S. A. (Sybrand Albertus) |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (484 leaves) |
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