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BUILDING FAMILIES THROUGH ASSISTED REPRODUCTIVE TECHNOLOGIES in SOUTH AFRICA: a CRITICAL LEGAL ANALYSIS by NTUMBA MANDE Submitte

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BUILDING FAMILIES THROUGH ASSISTED REPRODUCTIVE TECHNOLOGIES in SOUTH AFRICA: a CRITICAL LEGAL ANALYSIS by NTUMBA MANDE Submitte BUILDING FAMILIES THROUGH ASSISTED REPRODUCTIVE TECHNOLOGIES IN SOUTH AFRICA: A CRITICAL LEGAL ANALYSIS by NTUMBA MANDE submitted in accordance with the requirements for the degree of DOCTOR OF LAWS at the UNIVERSITY OF SOUTH AFRICA PROMOTER: PROF JM KRUGER FEBRUARY 2016 DECLARATION Student number: 35933364 I declare that BUILDING FAMILIES THROUGH ASSISTED REPRODUCTIVE TECHNOLOGIES IN SOUTH AFRICA: A CRITICAL LEGAL ANALYSIS is my own work and that all the sources that I have used or quoted have been indicated and acknowledged by means of complete references. I further declare that I have not previously submitted this work, or part of it, for examination at Unisa for another qualification or at any other higher education institution. ________________________ _____________________ SIGNATURE DATE ii ACKNOWLWDGEMENTS This thesis was written during a period of many challenges and hardships. It could have not been completed if I did not receive tremendous support and assistance from diverse sources. I am first and foremost grateful to the Almighty God, creator of Heaven and Earth, the unfailing father, for making the journey to the completion of this LLD thesis possible. I would like to express my sincere appreciation to my supervisor, Professor JM Kruger for her extremely competent supervision, encouragement and motivation. I would also like to say a word of appreciation to the following persons: My parents, Leonard Malu and Clementiane Mbombo for their unconditional love and support. My beloved wife, Jacka Masambombo Mande for her love, support, patience and understanding. My lovely son Ariel Winner Mande for his support and motivation. My brothers and sisters for their support and encouragement. Lastly, I would like to thank all my church members for their support and prayers. May God bless you abundantly. iii ABSTRACT The advent of ARTs has enabled many individuals to have children and build families. Although ARTs have from the start been designated to serve as alternative way for heterosexual infertile individuals and couples to have genetically related children, ARTs are nowadays widely used by gays and lesbians to have even genetically unrelated children and build their families. This study addresses the well- being of children born as a result of ARTs and growing up in homosexual families in South Africa. South Africa has legalised homosexual unions, granting gays and lesbians several rights, including the right to marry, use ARTs to reproduce, and build families in which they raise their children. South Africa has also provided constitutional and statutory protection of children’s rights and has further required that the child’s best interests be considered as paramount in every matter concerning the child. Although ARTs may have allowed people to have children, they have proven to put the child’s interests at risk. ARTs are associated with several physical and psychological problems for resulting children. The legal protection provided for those children seems to be inadequate in respect of their best interests. Unlike Australian statutes that have provided strong protection for the child’s best interests, South African legislations regulating ARTs are far from protecting ART- born children’s interests. The application of the child’s best interests criterion to ART procedures has revealed that in the USA and Australia efforts of the state, ART providers and parents have been centred on the transfer of the custody of the ART- born child to the commissioning parent(s). Although in South Africa the application of the child’s best interests in the context of surrogacy procedures has revealed the protection of the child’s interests, it should be noted that that protection seems to focus on the child’s post-birth period. This situation leaves ART-born children without any protection, especially before their birth. In order to give effect to section 28 of the Constitution of the Republic of South Africa, 1996 and protect ART-born children’s interests, I make certain proposals for law reform in the final chapter of this thesis. iv KEY TERMS Assisted reproductive technologies (ARTs), the best interests of the child, child’s best interests criterion, child’s well-being, homosexual families, building families, infertile individuals, legalisation of homosexual unions. v LIST OF ABBREVIATIONS AA: Acta Academia AB: Addictive Behaviours AC: Acta Criminologica AGP: Archives of General Psychiatry AI: Artificial Insemination AJCL: American Journal of Comparative Law AJE: American Journal of Epidemiology AJETS: Australian Journal of Emerging Technologies and Society AJFL: Australian Journal of Family Law AJHG: American Journal of Human Genetics AJHPE: African Journal of Health Professions Education AJIS: Academic Journal of Interdisciplinary Studies AJLM: American Journal of Law & Medicine AJO: American Journal of Orthopsychiatry AJP: American Journal of Psychiatry AJPH: American Journal of Public Health AJSI: Australian Journal of Social Issues AMI: Acta Media International ANZJOG: Australian New Zealand Journal of Obstetric Gynecology AP: American Psychology APS: Australian Psychological Society ARTs: Assisted Reproductive Technologies ASR: American Sociological Review BYU JPL: Brigham Young University Journal of Public Law vi BYULR: Brigham Young University Law Review CA: Children Australia CD: Child Development CFGS: Center for Genetics and Society CLPR: Constitutional Law and Policy Review CLR: Cornell Law Review CLR: Cardozo Law Review COOG: Current Opinions in Obstetrics and Gynecology CRJ: Christian Research Journal CULR: Capital University Law Review CSWJ: Clinical Social Work Journal CWEP: Commonwealth Education Partnership CWILJ: California Western International Law Journal CWLR: Case Western Law Review Dem: Demography DJGLP: Duke Journal of Gender Law and Policy DJ: De Jure DP: Developmental Psychology DS: Droit et Société ELJ: Emory Law Journal EUH: European Humanists EY: Ernest Young FP: Feminism and Psychology FCLR: Florida Coastal Law Review FLQ: Family Law Quarterly FLR: Federal Law Review vii FLS: Feminist Law Studies FM: Family Matters FR: Family Relations FS: Fertility & Sterility FVVOG: Facts, Views, Vision in Obstetric Gynecology GJICL: Georgia Journal of International and Comparative Law GLIPR: Gay and Lesbian Issues and Psychology Review GLJ: Georgia Law Journal GS: Gender & Society HarJLPPol: Harvard Journal of Law and Public Policy HCR: Hastings Center Report HLJ: Hastings Law Journal Hof LR: Hofstra Law Review HR: Human Reproduction HRB: Human Rights Brief HRU: Human Reproduction Update HSCC: Health and Social Care in the Community HWLJ: Harvard Women’s Law Journal IA: Infencia Aprendizaje ICSI: Intra Cytoplasmic Sperm Injection IJCE: International Journal of Childbirth Education IJCFW: International Journal of Child and Family Welfare IJCR: International Journal of Children’s Rights IJHR: International Journal of Human Rights IJLF: International Journal of Law and the Family IJLPF: International Journal of Law, Policy and Family viii ILJ: Indiana Law Journal IRJABS: International Research Journal of Applied and Basic Science IVF: In Vitro Fertilisation JAD: Journal of Adult Development JCCP: Journal of Consulting and Clinical Psychology JCHC: Journal of Child Health Care JCL: Journal of Constitutional Law JCP: Journal of Consumer Policy JDBP: Journal of Developmental Behaviour Pediatrics JFR: Journal of Family Research JFV: Journal of Family Violence JGIM: Journal of General Internal Medicine JGLBTFS: Journal of Gay Lesbian Bisexual and Transgender Family Studies JGLSS: Journal of Gay and Lesbian Social Service JH: Journal of Homosexuality JIV: Journal of Interpersonal Violence JJL: Journal of Juvenile Law JJS: Journal for Juridical Science JLFS: Journal of Law & Family JLM: Journal of Law and Medicine JLME: Journal of Law, Medicine and Ethics JLS: Journal of Law and Society JM & M: Journal of Markets & Morality JMEHM: Journal Medical Ethics and History of Medicine JMF: Journal of Marriage and the Family JMP: Journal of Medicine and Philosophy ix JPSP: Journal of Personality and Social Psychology. JRA: Journal of Research on Adolescence JRIP: Journal of Reproduction and Infant Psychology JSAS: Journal of South African Studies JSPR: Journal of Social Personal Relationships KIEJ: Kennedy Institute of Ethics Journal KLJ: Kentucky Law Journal LM: Law and Medicine LD & D: Law, Democracy & Development LIAC: Legal Information Access Centre LLR: Louisiana Law Review LT: Legal Theory LWW: Lippincott Williams and Wilkins Journals MH: Men’s health Minn JLST: Minnesota Journal of Law, Science and Technology MLR: Michigan Law Review MQ: Mediation Quarterly MULR : Melbourne University Law Review NDJLEPP: Notre Dame Journal of Law, Ethics and Public Policy NEJM: New English Journal of Medicine NQHR: Netherlands Quarterly of Human Rights NSW PLRS: New South Wales Parliamentary Library Research Service NSWPLRS: New South Wales Parliament Library Research Service NYSBAJ: NYSBA Journal NYUJILP: New York University Journal of International Law and Politics NYULR: New York University Law Review x O&GF: Obstetrics & Gynecology Forum OSLJ: Ohio State Law Journal PD: Prenatal Diagnosis PEC: Patient Education and Counseling PELJ: Potchefstroom Electronic Law Journal PLR: Public Law Review PLS: Politics and the Life Sciences PRJSJ: Peace Review: A Journal of Social Justice PS: Prevention Science PSP: Parenting: Science and Practice SACQ: South African Crime Quarterly SAJHR: South African Journal on Human Rights SAJP: South African
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