Browsing by Author "van Niekerk, Carmel"

Now showing 1 - 4 of 4
  • Thumbnail Image
    Item
    Strange (and incompatible) bedfellows: The relationship between the National Health Act and the regulations relating to artificial fertilisation of persons, and its impact on individuals engaged in assisted reproduction
    (Health and Medical Publishing Group (HMPG), 2017) van Niekerk, Carmel
    Individuals are increasingly having recourse to assisted or artificial reproduction in order to realise their desire for offspring. This field is currently regulated by the National Health Act No. 61 of 2003 (NHA, or the Act) and the regulations relating to artificial fertilisation of persons, which form the framework legislation for assisted reproduction. Individuals having recourse to assisted reproductive technologies are therefore forced to engage with this legislation in one way or another. The challenge posed by the current legislative framework is that both the Act and the regulations are unclear and confusing. One could even go so far as to say that they are incompatible in some respects. Matters are further complicated when the Act and the regulations have to be applied alongside legislation such as the Children’s Act No. 38 of 2005. The result is that legislation that is intended to provide legal certainty and clarity has the opposite result. This article considers the Act, its regulations and legislation that has bearing on assisted forms of reproduction. The aim of this analysis is to identify flaws and to provide suggestions for remedying potential defects, in order to produce legislation that not only creates legal certainty, but that is up to date and on par with advances in science and technology.
  • Thumbnail Image
    Item
    A surrogate mother’s post-birth contact with the family formed through surrogacy: a missed opportunity for South Africa or opening pandora’s box?
    (University of the Western Cape, 2023) Ebrahim, Fatima; van Niekerk, Carmel
    This dissertation assesses the suitability of South Africa’s current framework on post-birth contact in surrogacy law and explores whether it adequately protects the interests of all parties to the surrogacy agreement. This assessment reviewed the current legislative and practical framework, and then compared it to the Verona Principles’ best practices and the position in the United Kingdom, United States and Canada where post-birth contact practices occur. The assessment found that the current framework has several deficiencies. Its law as contained in section 297(1)(d) of the Children’s Act erroneously creates a default position that excludes post-birth contact between the surrogate and her family and the child born through surrogacy, unless provision is made for its inclusion in the surrogacy agreement. Its practices were found to give precedence to the interests of commissioning parents by largely excluding post-birth contact for previously unknown surrogates and limiting the autonomy of previously known surrogates to determine the terms of such contact. This position persists as inadequate discussions appear to occur between the parties on their post-birth contact expectations due to beliefs that this contact is not permitted or it is discouraged for unknown surrogates. High courts also do not appear to probe post-birth contact provisions in surrogacy agreements or the lack thereof. This assessment also raised concerns about the perception of bias and conflict of interests due to one attorney representing and one psychologist assessing all the parties to the surrogacy agreement.
  • Thumbnail Image
    Item
    When a relationship has reached its expiration date, does the same apply to the embryos under South African Law? - research
    (Nelson Mandela Metropolitan University, 2017) van Niekerk, Carmel
    Individuals are more frequently having recourse to assisted reproductive technologies (ART) to realize their desire for offspring. Where they do so, they may choose to fertilize their gametes and implant the resultant embryos immediately, or they may choose to freeze their embryos for later use. The latter option brings with it greater potential for legal disputes as relationships terminate, parties change their minds, and disagreements arise regarding the fate of frozen embryos. This article, therefore, examines the South African legal framework for addressing disputes involving frozen embryos. The aim is to assess whether the current legal framework is adequate, and whether lessons can be learnt from other jurisdictions faced with similar legal disputes.
  • Thumbnail Image
    Item
    When is a donor a daddy? Informal agreements with known sperm donors: Lessons from abroad
    (Nelson Mandela University, 2021) van Niekerk, Carmel
    Individuals are increasingly entering into informal agreements with known sperm donors in order to either circumvent the costs involved in using fertility centres or owing to personal beliefs and preferences. When they do so, the legal protection that ordinarily accompanies the use of a fertility centre is either sparse or lacking. The question is what happens when one of the parties reneges on the agreement, either by demanding parental responsibilities or rights in the case of the donor or, in the case of the recipient, by demanding that the donor assumes a parental role when this was never his intention. The position in South Africa is currently unregulated. This article, therefore, examines the position in a number of foreign jurisdictions with the aim of making recommendations for the way forward in South Africa.