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Family law > Module 3- Adoption and surrogacy > Flashcards

Module 3- Adoption and surrogacy Flashcards

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1
Q

What is Artificial insemination as defined by the Children’s Act section 1(1)?

A

Artificial insemination is when sperm is introduced to an egg for reproduction purposes in ways other than sex either in the womb of a female person or outside the body.

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2
Q

Who gains parental rights and responsibilities in insemination that isn’t surrogacy?

A

If the mother is married her husband has full parental rights and responsibilities. The donor has no parental rights and responsibilities unless they are the birth mother or the husband of the birth mother at the time of such artificial fertilisation

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3
Q

What does section 41(1) of the Childrens Act state?

A

According to Section 41(1) a child born in artificial fertilisation is entitled to any medical information concerning the child’s genetic parents.

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4
Q

How does the Children Act regulate the information of genetic parents of children?

A

According section 41(2) and 41(3) children are entitled to other information concerning the child’s genetic parents once the child has reached the age of 18 years. However, they cant disclose the identity of the gamete donor or identity of the surrogate. It is may also be required that the person receive counselling before a child or guardian receives any medical or other information

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5
Q

What chapter of the Children’s Act covers surrogate motherhood?

A

Chapter 19 of the Children’s Act has rules and regulations of surrogate motherhood.

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6
Q

How does the Children’s Act define surrogate motherhood?

A

A surrogate mother according to Section 1(1) a women who undertake to be artificially inseminated in order to bear a child for the commissioning parents

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7
Q

What is a surrogate motherhood agreement?

A

A surrogate motherhood agreement is an agreement between the commissioning parents and the surrogate mother.

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8
Q

What is the general agreement of a surrogate motherhood agreement?

A

In which the surrogate agrees to be artificially inseminated for the purpose of bearing a child for the commissioning parent, in which the surrogate mother agrees to hand the child to the commissioning parents once it has been born with the intention that the child concerned becomes the child of the commissioning parents

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9
Q

How does a surrogate agreement get approved?

A

According to section 292(1)(a) surrogate motherhood agreement according must be in writing and it must be approved by the High Court within the jurisidiction of commissiong parents are domiciled or habitually resident

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10
Q

What are the circumstances in which the birth mother of a child won’t be regarded as the mother of the child?

A

Section 297 states that the only circumstance in which a birth-mother will not be regarded as the child is when she is a surrogate mother in terms of valid surrogate motherhood agreement. If there is no surrogate motherhood agreement the surrogate will be the legal mother of the child.

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11
Q

What is the requirements for a valid surrogacy agreement in the Children’s Act relating to the commissioning parents?

A
  • Must demonstrate that they are choosing it because they are unable to procreate in the usual way
  • Must use the gamete of at least one commissioning parent even in the case of single women
    They must be suitable parents for the future child
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12
Q

What are the requirements for a valid surrogacy agreement in the Children’s Act relating to the surrogate mother according to section 295(c)?

A
  • Must be a suitable person
  • She and her husband/partner must both consent
  • She must have at least one living child of her own
  • She must not be using surrogacy as a source of income, but only for altruistic reason
  • She can only receive payment for expenses related to the pregnancy and for lost earnings
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13
Q

What part of the Children’s Act doesn’t allow commercial surrogacy agreements?

A

The Children’s Act does not allow commercial surrogacy according to section 301(1)

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14
Q

What does section 296 of the Children’s Act state?

A

Section 296 states that no artificial fertilisation of the surrogate mother is permitted until the court has confirmed the surrogate motherhood agreement. The artificial fertilisation must be done within 18 months from the date of the confirmation of the agreement otherwise the agreement lapses

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15
Q

What are the effects on artificial insemination of a valid surrogacy agreement according to section 297?

A
  • At birth the commencing parents obtain full rights and responsibilities automatically
  • The surrogate mother and her husband has no legal rights nor duties in respect of the child
  • The surrogate mother must hand the child over to the commissioning parents as son as possible
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16
Q

What happens to the commissioning parents rights and responsibilities if the surrogate agreement is invalid?

A

If the agreement is not valid the commissioning parent has no rights and responsibilities. The surrogate mother has full rights and responsibilities and if she is married her husband could be assumed to be the father of the child

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17
Q

What is full surrogacy?

A
  • All genetic material are from donors
  • The surrogate mother has not genetically relation to the child
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18
Q

What is partial surrogacy?

A
  • Surrogate mother egg is used
  • Sperm could be from the commencing parents or donor
  • She is genetically linked to the child
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19
Q

Can a full surrogacy surrogate mother terminate the agreement?

A

In a full surrogacy the surrogate mother cannot terminate the surrogate agreement and keep the child.

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20
Q

Can a partial surrogate mother terminate the agreement?

A

According to section 298 in a partial surrogacy the surrogate can ask the court to terminate the agreement and keep the child before the child is 60 days old, if its in the child’s best interest. However, she must return payments to the commissioning parent which have been made in terms of section 301.

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21
Q

What are the results of a terminated surrogacy agreement?

A

According to section 299 if a surrogacy agreement is terminated the surrogate acquires full rights and responsibilities along with her husband. If not married the sperm donor which is the commissioning father acquires full rights and responsibilities and may claim maintenance from the commissioning father

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22
Q

Can a surrogacy agreement be terminated by pregnancy?

A

According to section 300 the surrogate mother can terminate the surrogacy agreement by terminating her pregnancy. This is because the Constitution protects women’s right to terminate their pregnancy based on the legislation in the Choice on Termination of the Pregnancy Act (1996). This choice lays on the pregnant mother; there is no need for consent by anyone else. This can be done in the first three months and after this due to medical reasons

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23
Q

What are the steps that the surrogate mother must take to terminate a pregnancy?

A

When the surrogate mother terminates her pregnancy she must inform and consult the commissioning parent. She however does not need permission for anyone else. If the termination is done for reasons other than medical reasons she must return all payments received in terms of section 301.

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23
Q

What legal legislation protects the choice of terminating pregnancy?

A

Choice on Termination of the Pregnancy Act (1996)

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24
Q

Can a full surrogate mother terminate her pregnancy?

A

The surrogate mother can terminate her pregnancy regardless if its a partial surrogacy or not

25
Q

What payments are allowed for a surrogacy agreement according to section 301?

A
  • Loss of earnings; if she had a job
  • Insurance
  • Reimbursement for expenses; for maternity clothes, travel expenses and accommodation expenses
  • Bona fide legal or medical services
26
Q

According to section 301 what payments are not allowed for a surrogate agreement?

A
  • Payment for being pregnant
  • Payment for undergoing artificial insemination
  • Payments for giving birth
27
Q

Why doesn’t the Children’s Act allow commercial surrogacy?

A

The reason the Children’s Act does not allow commercial surrogacy is to protect economically vulnerable women and to stop the sale of Children

28
Q

What chapter of the Childrens Act regulates adoption?

A

Adoption is regulated by chapter 15 of the Children’s Act.

29
Q

How is adoption defined in the Children’s Act?

A

The child is adopted if the child has been placed in the permanent care of the adoptive parent in terms of a court adoption order.

30
Q

What is the purpose of adoption is set out in section 229?

A
  • To protect and nurture children by giving them a safe, healthy environment with positive support
  • To promote the goals of permanency by connecting the adopted child to other safe and nurturing family relationships which are intended to last a lifetime
31
Q

What are adoptable children set out in section 230(3)?

A
  • Orphans
  • Children who have been abandoned
  • Children whose parent cant be found
  • Children who have been neglected or maltreated
  • Children who need permanent alternative care
32
Q

What was the outcome of the Centre for Child Law v Minister of Social Development the High Court?

A

In Centre for Child Law v Minister of Social Development the High Court gave an order that the court held that a step-child can conceivably be regarded as abandoned and therefore adoptable where a non-custodial parent consented and where the child for no apparent reason has had no contact with the guardian for a period of at least three months. And therefore Section 230(3) of the Act and can be adopted by their step parents

33
Q

Who can adopt as per section 231(1)?

A
  • Married or unmarried couples, families and households
  • Single/widowed people
  • Foster parents
  • Step parents
  • Biological fathers who do not have automatic parental rights and responsibilities
34
Q

What is the main qualification for parents to adopt?

A

Parents can only adopt if they can prove they are suitable parents and if they are willing and able to care for the child

35
Q

How do you determine if prospective parents will be good parents according to section 231(2)(a)?

A
  • Fit and proper to be trusted with full parental responsibilities and rights in respect of the child
  • Willing and able to undertake, exercise and maintain those responsibilities and rights over the age of 18
  • Properly assessed by an adoption social worker
36
Q

Can the cultural and community diversity of a child be considered in adoption?

A

According to section 231(3) an adoption social worker may take into account the cultural and community diversity of the adoptable child and prospective adoptive parent

37
Q

Can the adoptive parents be disqualified because of finances?

A

Section 231 states that if the prospective adoptive parents are not financially well off they cannot be disqualified but may apply for a social grant.

38
Q

Who should consent of the adoption be from according to section 233(1)?

A
  • Consent of the child if they are older than the age of 10
  • Consent of the guardians of the child
  • Consent of the biological parents of the child
  • Consent of the adopting parents
39
Q

Can a person withdraw consent of adoption?

A

Any person may withdraw their consent within 60 days having signed the consent according to section 233 (8).

40
Q

What does section 233(4) of the Children’s Act state?

A

The Children’s Act makes provisions for a social worker to counsel the parents of the child available for adoption and must also counsel the child where applicable according to section 233(4)

41
Q

What must be done by the clerk during adoption?

A

In terms of section 237 once a child becomes available for adoption the clerk of the children’s court must gather information for the proposed adoption. The clerk can ask for assistance for home affairs to access information contained in registration of the child and may gather information from the social worker involved in the adoption

42
Q

After all the necessary information is gathered by the clerk what happens in the adoption process?

A

According to section 238 once all this information has gathered the presiding officer must get the sheriff to serve notice to each person whose consent is required and must inform them of the proposed adoption and request their consent or expressly withhold. This person fails to notice that within 30 days that person must be regarded as having consented to the adoption.

43
Q

What is the process for adoption to be approved?

A
  • Children’s court must make an adoption order
  • Considering the report of a social worker
  • Considering whether the necessary consent was obtained
  • Taking into account the child’s cultural and religious background
  • Whether the adoption is in the best interests of the child
44
Q

When is parental consent not required according to section 236?

A
  • Unable to consent as the parents lack the capacity to consent
  • Parents who cannot be found
  • Parents who have abandoned the child or abused the child
  • Parents who according to a court have no right to consent
  • Parents who do not respond to the request to consent
45
Q

When is the biological fathers consent is not needed according to section 236?

A
  • They have not acknowledged paternity
  • The child was conceived as a result of incest
  • The child was conceived as a result of rape
46
Q

How should consent to adoption be presented?

A

According to Section 233 consent to an adoption must be in writing and signed in the presence of a presiding officer of the children’s court. Consent of a child if required must also be signed in the present of the presiding officer. If the content is given outside the republic it must also be verified unless good cause is shown.

46
Q

Why is consent to an adoption of an orphan not required?

A

Consent to the adoption of the child is also not necessary if the child is an orphan and has no guardian or caregiver who is willing and able to adopt the child

47
Q

What is a post-adoption agreement?

A

A post-adoption agreement is made before the adoption agreement and means there can be more extensive contact between the biological family this is highlighted in section 234. The agreement must be assisted by a social worker and be made an order of court and will only be granted in the best interest of the child. For a post-adoption agreement children of a certain age, maturity and stage of development must give consent.

48
Q

What does a freeing order authorise?

A

A freeing order in section 235 must authorise a child protection organisation or a person exercise parental responsibilities and right in respect to the child pending the adoption

49
Q

When does a freeing order lapse in section 235?

A
  • If the child has not been adopted within a period 12 months and there are no reasonable prospects the child will be adopted
  • If the order is not terminated by the court because its no longer in the best interest of the child
  • If the child, parent or person who consented to the adoption withdraws consent
50
Q

What are the procedures requirements for an adoption order according to section 239 ?

A
  • Application must be approved by the childrens court
  • Must accompanied by an adoption social workers report
  • The provisional head of social development recommending the adoption
  • The clerk must submit all necessary documents
51
Q

What is included in a social workers adoption report according to section 239?

A
  • Child must be adoptable
  • Adopting parents must be suitable
  • Necessary consent must be obtained
  • Proper adoption procedure must be followed
  • Application must be approved by the children’s court
52
Q

What are the factors the court must consider when considering an adoption application according to section 240?

A
  • The religious and cultural background of the child, the child’s parents and prospective adoptive parents
  • All reasonable preference expressed by a parent and stated in the consent
  • The best interests of the child and the child’s medical information
53
Q

When might an adoption order be granted without consent?

A

If a person withholds consent for adoption, the court may grant adoption order despite the absence of consent if it’s in the best interest of the child in section 241. Such as whether consent has been withheld unreasonably.

54
Q

What does an adoption order do in section 242?

A

An adoption order in section 242 terminates the parental rights and responsibilities of biological parents and grants them to the adoptive parent except in the case of step parents. The adoption order confers full parental rights and responsibilities on adoptive parents

55
Q

What does an adoption order for all legal purposes mean for the child?

A
  • Child an inherit from the adoptive parent
  • Child has the surname of the adoptive parents
  • The child however may not marry or have sex with the biological parents or anyone from their biological family
56
Q

When can a rescinding order be brought to the court?

A

An adoption order can be rescinded according to section 243. If an application is brought to court by the adopted child, biological parent or guardian. This application must be logged with the court within a reasonable time but not exceeding two years from the date of the adoption

57
Q

When can an adoption order be rescinded by the court according to the Children’s Act?

A
  • It’s in the best interest of the child
  • If the required consent was not obtained
  • If the adoptive parents did not qualify in terms of section 231
58
Q

Who must the notices of the recession of an adoption order be given to?

A

adoptive parents, to all who have consented or withheld their consent, to the central authority in terms of a inter-country adoption and to any other person whom the court finds sufficient interests

59
Q

What is the effects of a rescission order on the adoption parents?

A

If the adoption order is rescinded the parental rights and responsibilities are reversed to how they were before the order. The court could also make a temporary placement order when appropriate according to section 244.

60
Q

When can an adopted child access information about their adoption?

A

Section 248 states an adopted child may access information contained in the adoption register once they reach 18 years old only if the adoptive parent and the child give their consent in writing. The adoptive child and parents are entitled to any medical information if such information relates to the health of the child.

Family law (11 decks)

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