Category Archives: Surrogacy

23 Sep

Lessons Taught By Gay Fathers

There is much to be learnt from the experiences of gay fathers, say recent articles in both Times Live and The Conversation. The traditional family nucleus of heterosexual mother and father looking after and caring for their children in typical stereotyped manner is somewhat fractured by the existence of homosexual couples and their own form of child care, but the changes made by homosexual couples and their childcare can be beneficial rather than negative for the family. This gives society a few pointers as to how parenting should be undertaken in the modern day and age.

The first point that gay parents seem to bring into contention is the perception of gender roles. For years women have been expected to be typical housewives, looking after children and ensuring a well-kept home. Men, meanwhile, have typically been the breadwinners, and have naturally drifted away from emotional attachment with children. However, the concept of biological motherhood needs to be entirely discarded by gay parents. Traditional concepts of ‘women-only’ activities reserved for mothers need to be undertaken by gay men in order to responsibly bring up their children. And if gay men can do it, why not heterosexual fathers?

If men take over some of the responsibilities associated with motherhood, then both genders will stand a lot to gain from such a change. For one, fathers will spend a lot of additional time with their children, and they can therefore develop their relationships between father and child. Women will also be afforded the time to participate in the workforce, and they will not have the added responsibility of participating in ALL aspects of child-rearing. Instead child care will be a shared responsibility by both parents.

The articles made a reference to the fact that gay marriages, and childcare undertaken by a gay parents, is often believed to threaten the typical heterosexual relationship. There can be nothing farther from the truth. Families unified by the relationship between gay couples often deliver lessons that can be learnt by all. The most important lesson they can teach is that parenting is a shared responsibility for both parents, and that in cases regarding child custody both the father and mother should have equal rights regarding childcare and contact. If you require a specialized Child Custody Attorney with years of legal experience, contact Ivan Zartz Attorneys today.

 

16 Sep

No Genetic Link Required For Surrogacy in South Africa

There has been a new development with regards to the legal regulations involving surrogacy in South Africa. The revision regarding surrogacy laws are so groundbreaking that it may change how surrogacy is viewed in the country, and there will likely be a surge in the number of surrogate applications.

The Pretoria high court overturned the legal requirements of parents who wish to apply for surrogacy. Where couples were required to provide at least one gamete from one of the proposed parents required for artificial insemination, now neither parent is required to do so if they are unable to provide a gamete. The revision takes into consideration that there are many couples where neither proposed parent is able to have children. Therefore no genetic lineage is required in the surrogate application.

Until this point there have been many distressed couples who have been looking for ways and means of having children, but to no avail. The requirement for a genetic link between child and parent was defended by the conviction that a link safeguards the concept of family. The court however believes that this would be discriminating against those families with adopted children. By no means is a family with adopted children less equal than that with children naturally conceived.

The court and supporters of the new ruling believe that this represents the perfect opportunity to give the gift of life to those who are unable to have children at all. One portion of society that can benefit most from this ruling are those unmarried women and men who are infertile, and wish to be the proposed mothers or fathers in a surrogacy case. The ruling, however, will make its way to the Constitutional Court to determine whether or not it becomes legislation.

For more information on surrogacy in South Africa, make sure you contact Ivan Zartz Attorneys. Ivan Zartz and his team of legal specialists are experienced in providing the necessary legal assistance to those interested in executing a surrogacy application.

 

26 Aug

Surrogacy Legal Process

The legal process that takes place at the onset of surrogacy is a long and complicated procedure.  However, the surrogacy procedure in South Africa is not as lengthy and perplexing as the surrogacy process in a number of other countries.

The legal aspects regarding surrogacy leans heavily on the reliance of an approved High Court application. The application toward the High Court requires a collection of documentation that, unfulfilled, will mean the end of the surrogacy process.

The initial stages of the application requires the surrogate mother as well as the intended parents to go through a number of medical and psychological reports. The psychological report, made by psychologists, will determine if the intended parents are fit to look after a child, and if the surrogate mother can adequately bare the mental trauma of pregnancy and childbirth. A medical report will also establish if the surrogate mother is able to have children, while a report must also be made on the intended parents’ inability to have their own children.

There are also reports that need to be issued by social workers that deem whether or not intended parents are fit to raise a child, given the intended parents’ lifestyle, living-conditions and financial situation.

The most important part of the High Court application is the surrogate agreement between the parents and the surrogate mother. The agreement has to fulfill the requirements as stipulated in Chapter 19 of the Children’s Act, Surrogate Motherhood.

This Chapter of the Children’s Act outlines all the requirements of both parties involved in the surrogate agreement. The Chapter outlines the requirements of the genetic origins of the child, and where the gametes involved in insemination may be derived. This part of the Chapter also points out requirements such as, if only the gamete from a single intended parent can be used, that there is proof of the other parent being unable to provide a gamete. The Chapter lays down the rules pertaining to the handing over of the child after birth. It also outlines the effects of termination of the surrogate agreement, as well as the termination of the pregnancy.

The High Court and the Chapter ascertains the actions that are prohibited  on the part of both surrogate mother as well as intended parents, such as the prohibition of payment etc.

It is only after these guidelines are provided, an the correct documentation approved, that the High Court accepts an application. It is at this stage that the High Court will determine the process of insemination and the guidelines following from pregnancy to the handing over of the child.

If you require legal representation and assistance with any case involving surrogacy, make sure that you contact Ivan Zartz Attorneys. Ivan Zartz Attorneys specialise in all cases and legal matters involving surrogacy in South Africa.

24 Aug

Problems of Surrogacy

For some the idea of surrogacy may be a beautiful thing. It allows those who are unable to have children the chance to get what they always wanted. Whether they are restricted by their sexual preferences or they are unable to have children because of medical issues, surrogacy can provide couples with the option of having someone else bear their own child.

However, there are issues regarding surrogacy. Problems of surrogacy involve ethics, medical complications and problems regarding the surrogate mother.

  • Ethical issues include the religious implications. Many Christian denominations believe that surrogacy is immoral, and in the Islamic faith surrogacy is banned altogether. Some other religions allow surrogacy, but only if certain conditions are met.
  • Many people believe that surrogacy is akin to the selling of the babe. Surrogate mothers  are usually believed to be desperate women, and they can be victims of prejudice in their societies and families. The issue of contact between birth mothers and the child are also highly controversial, as some parents do not believe that their children should ever meet their biological mothers.
  • The health of the biological mother is also a risk as they are prone to infection or the chances of twins and triplets. Artificial insemination also leads to many miscarriages, and this will affect both the parents and the biological mother.
  • Intended parents also stand the risk of losing their child due to the behaviors of biological mothers as they go about their daily lives. Some mothers drink, and on the rare occurrence may even take drugs that can affect the baby’s health.
  • Some surrogate mothers will choose to keep their child after their pregnancy. In this case either the mother or the intended parents will be grievously upset by the choice made in court.

Be sure to read our next blog concerning the legal problems involved in surrogacy. For any issues, contracts or grievances concerning surrogacy in South Africa, be sure to contact Ivan Zartz Attorneys. Ivan Zartz Attorneys also specialize in other cases regarding family law, such as divorce, care and contact, and family mediation.

10 Aug

Legal Victory For Fathers Regarding Maternity Leave

Heterosexual as well as homosexual fathers have may well win an important legal case following a controversial issue that was recently resolved in court. Labour Court may have to revisit policy regarding maternity leave for surrogate parents, and are likely to allow one parent from a homosexual male couple to be granted the normal maternity leave of four months in cases of surrogacy of a newborn child. This may also be extended to the male parent in a heterosexual couple that are fostering a newborn child.

This follows a case whereby an employee, who had entered a civil union a year previously, applied for the four months maternity leave after the surrogate mother of which they shared a surrogacy agreement gave birth. The employer initially denied the employee the maternity leave, instead offering four months special unpaid leave.

The employee, who had agreed with his partner to take the role normally occupied by the birthmother, refused such terms. The employer then offered the employee 2 months paid leave before 2 months special unpaid leave. It was at this stage whereby the matter went to court. 

The employer claimed that the Basic Conditions of Employment Act only made provisions for mothers in cases of maternity leave, and that the leave has been granted in order for the mother to regain her health following the bodily trauma following pregnancy. The employee’s case was that this standpoint refuses to identify the child’s needs and rights in accordance to the Constitution; that of a child’s right “to family care or parental care”.

The Labour Court found that there should be no reason to deny the employee the required paid maternity leave. This highlights the fact that policy will need to be reviewed with regards to surrogacy and the ‘maternity’ leave required by at least one parent, whether female OR male. It also shows that Labour Court may come to the assistance of those parents who are fostering new born children, and that employers must ensure that these rights are endorsed if they hope to proactively avoid such legal processes.

For more information regarding surrogacy, or if you require legal assistance on matters concerning surrogacy, make sure that you contact Ivan Zartz Attorneys today!