Statutere regulering van surrogaatmoederskap : 'n kritiese ontleding van relevante oorwegings

[摘要] ENGLISH ABSTRACT:The aim of this study is to investigate the possibility of regulating surrogacy in the light ofthe existing legal position and the relevant moral aspects. It is now medically possible forone woman to bear a child, which is not genetically related to her, on behalf of anotherperson. Currently the law makes no specific provision for the regulation of surrogatemotherhood. The key problem in this regard is that the existing law is applicable to surrogatemotherhood, inter alia because surrogacy is brought about by artificial insemination andbecause the intended parents can only acquire parental authority by way of adoption. Thefinal recommendation is a Surrogacy Act for South Africa.The thesis is divided into three parts. The first part is an analysis of the relevant moral andsocial aspects relating to surrogacy in order to justify the above-mentioned act morally.Commercial surrogacy, the genetic tie between parent and child, the differences betweensurrogacy and adoption, the question as to who is a parent and surrogacy for convenience areanalysed. Despite all the arguments that can be made in favour of or against these moralissues in a vacuum, these arguments will be irrelevant in cases where the child is alreadyborn. In such a case the only relevant concern will be what is in the child's best interest.In the second part of the thesis the existing legal position is analysed. This includes anexamination of the applicable legislation, the impact of the Constitution, the South AfricanLaw Commission's proposed bill on surrogate motherhood and the customary law. Althoughthe relevant legislation does not specifically provide for surrogacy, it remains applicable.This is extremely problematic for the parties involved.The Bill of Rights is applicable to all law and binds the Legislature. Therefore the mainprinciples of the Constitution will have to be embodied in the proposed regulatory Act.Although the Law Commission's proposed bill is a well formulated document, oneshortcoming that has been identified is that it is not constitutionally justifiable.The customary law has several practices which are analogous to surrogacy. The right toculture, which is entrenched in the Constitution, has the effect that these practices cannot beoutlawed. However, should it not be consistent with the Constitution, it can be held to beinvalid.The conclusion which is reached is that surrogacy can be morally and constitutionallyjustifiable if it is regulated properly. It is therefore proposed that an Act be formulated toregulate these relevant issues. Such a proposed Act is included in part three of the thesis.

[发布机构] Stellenbosch University