The right to be born: surrogacy and the legal control of human fertility.
South African law, in common with many other legal systems, has exercised a strong measure of control over the fertility of its citizens via the sanction of illegitimacy and the prohibition of marriage (and hence legitimate children) between certain persons, e.g. those who fall within the so-called prohibited degrees of relationship. Until last year, when the Mixed Marriages Act was abolished, marriage across the colour line was prohibited in South Africa. The requirement of a valid consent by both prospective spouses in order to enter into marriage further excludes certain categories of persons from procreating legitimate children, e.g. the insane and mentally feeble, while the requirement of consummation will exclude certain categories of paraplegics from solemnizing a valid marriage. Age restrictions on marriages and the requirement of parental consent for minors are further factors limiting the individual's freedom to procreate. These restrictions have a well-established historical basis extending over many hundreds of years. They can be broadly categorised as having as their objective the preservation of the family unit. The above provisions were formulated at a time when the law never contemplated the spectacular advances in human biology that have produced the numerous artificial forms of conception, such as AID, IVF and surrogacy. The legislature, both in South Africa and elsewhere, at first adopted a neutral approach to this new fertility revolution and watched the courts struggle to adapt outmoded principles to the new technology. Legislation relating to AID and IVF eventually appeared in many jurisdictions; as a result of its delayed introduction public opinion had been educated to accept the new techniques and the legislation is by and large favourable to these new techniques. Not so, however, as far as surrogacy is concerned. South Africa, England and Australia have produced essentially negative legislation on this subject. Certain American states, however, have adopted progressive legislation accepting surrogacy. The merits of surrogacy are discussed and it is submitted that it should be condoned by the South African legislature under certain circumstances, as it can fall in the scope of furthering the interests of the family unit.
Lupton
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D032982:Contracts; D033161:Government Regulation; D006801:Humans; D038622:Internationality; D007603:Jurisprudence; D007878:Legislation as Topic; D033261:Maternal-Fetal Relations; D009035:Mothers; D018570:Risk Assessment; D013019:South Africa; D013533:Gestational Carriers