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Law Of Persons And Family (RDL1009H) Chapter 10 - Artificial Insemin And Surrogacy

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Sandra Watson
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University of Cape Town

Law of Persons and Family (RDL1009H)

Artificial Insemination and Surrogate
Motherhood
ARTIFICIAL INSEMINATION
 Most simply put, this is in vitro fertilization when the sperm and egg are fused outside the
mother’s body but the mother then carries the baby.
 Artificial insemination and surrogacy takes place but there are no legal regulations on the
matter.
 There are two types of artificial insemination:
1. Homologous artificial insemination
 When a married woman has the gametes/sperm of her husband. The resulting child is considered
legitimate, irrespective of whether or not the husband consented to this conception.
2. Heterologous artificial insemination
 When a child is born as a result of artificial insemination to an unmarried woman; OR
 as a result of artificial insemination to a married woman with the semen of a man other than her
husband.
 This is known as “A.I.D” (heterologous artificial insemination)
 The children in these cases were regarded as extra-marital, even if the husband consented to
another man’s semen to be used, however this situation was remedied.
Children’s Status Act 82 of 1987 – Remedy
 This brought about changes to the Common law rulings
 Section 5(1): In terms of s5(1)(a), whenever a gamete or gametes of any person other than a
married woman and her husband has been used for the artificial insemination of that woman with
the consent of both spouses, any child born as a result of such artificial insemination is deemed
for all purposes to be the legitimate child of the spouses.
 Section 5(2) dealt with the legal position of the donor of female/male gametes used in the
artificial insemination: there will be no legal ties between a child born as a result of artificial
insemination of a woman and the donor of either the male or female gametes. UNLESS:
a) The donor of the female gametes is the woman who also carried and gave birth to the
child, OR
b) The donor of the male gametes is married to such woman at the time of the artificial
insemination.

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Law Of Persons And Family (RDL1009H) Chapter 10 - Artificial Insemin And Surrogacy

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