MEDICALLY ASSISTED REPRODUCTION AND ‘WRONGFUL CONCEPTION’, ‘WRONGFUL BIRTH’ & ‘WRONGFUL LIFE’ LIABILITY Flashcards

Question

Two main surrogacy agreements

Answer 1

traditional (or genetic) surrogacy and gestational surrogacy.

Answer 2

the surrogate’s ovum is used. Consequently, the resulting child is genetically related to the surrogate

Answer 3

involves the use of the ovum of one of the commissioning parents (‘intended parents’) or an egg donor. Consequently, the resulting child is genetically unrelated to the surrogate.

Answer 4

showing a willing to help or advatage others even if it resukts in disadvatages for yourself

Answer 5

(a) The commissioning parent(s): Must be unable to give birth due to a permanent and irreversible condition

Answer 6

b) The commissioning parent(s) must: Be competent under this Act to enter into the agreement. Be suitable to accept parenthood for the child to be conceived. Understand and accept the legal consequences of the agreement and this Act, including their rights and obligations.

Answer 7

(c) The surrogate mother must: Be competent under this Act to enter into the agreement. Be suitable to act as a surrogate. Understand and accept the legal consequences of the agreement and this Act, including her rights and obligations. Not use surrogacy as a source of income. Have altruistic motives, meaning she has entered into the agreement for reasons other than financial gain. Have a documented history of at least one pregnancy and viable delivery. Have a living child of her own.

Answer 8

(d) The agreement must include provisions ensuring: Contact, care, upbringing, and general welfare of the child in a stable home environment. The child's position in case of: Death of one or both commissioning parents. Divorce or separation of the commissioning parents before the child’s birth.

Answer 9

The court must consider the personal circumstances and family situations of all parties involved. However, the best interests of the child must be prioritized before confirming the agreement.

Answer 10

NO artificial fertilisation of the surrogate mother may take place- before the surrogate motherhood agreement is confirmed by the court;

Answer 11

after the lapse of 18 months from the date of the confirmation of the agreement 50 in question by the court.

Answer 12

Any artificial fertilisation of a surrogate mother in the execution of an agreement emplated in this Act must be done in accordance with the provisions of the National Act, 2003

Answer 13

1. Conformation of agreement 2. Artificial fertilisaion of mother 3. Lapse of 18 month period:Artificial fertilisation of mother is prohibited

Answer 14

A valid surrogate motherhood agreement legally transfers parenthood to the commissioning parent(s) from birth. The surrogate mother must hand over the child promptly and has no parental rights, nor do her spouse, partner, or relatives. Contact with the child is only possible if specified in the agreement. Once artificial fertilization occurs, the agreement cannot be terminated, except under certain conditions. Additionally, the child cannot claim maintenance or inheritance from the surrogate mother or her family.

Answer 15

A surrogate motherhood agreement that fails to meet the requirements of the Act is considered invalid. In such cases, the woman who gives birth to the child is legally recognized as the child's mother, regardless of any prior arrangement.

Answer 16

A surrogate mother who is also the genetic parent of the child may terminate the surrogate motherhood agreement within 60 days after birth by filing written notice with the court. The court must confirm that she understands the consequences before officially ending the agreement. If termination occurs, the court may issue further orders in the best interest of the child. The surrogate mother is not liable to the commissioning parents for terminating the agreement, except for reimbursement of payments they have made under Section 301

Answer 17

1. Surrogate must fole written notice with the court 2. Courts must give notice to the parties ton the agreement of the surrogate's intention to terminate it 3. There must be a hearing 4. The court must terminate the confirmation of the surrogate agreement if the court finds that the surrogate has (i)viluntarily terminated the agreement and (ii) understands the effects of the termination 5. The court may issue any other order if its in the best interest of the child

Answer 18

If a surrogate motherhood agreement is terminated, parental rights shift to the surrogate mother, her spouse/partner (if any), or, if none, the commissioning father. If termination happens before birth, they are legally recognized as the child's parents from birth. The surrogate mother or guardian must take on full parental responsibility, and commissioning parents lose their rights unless they adopt the child. Additionally, the child cannot claim maintenance or inheritance from the commissioning parents or their relatives.

Answer 19

A surrogate motherhood agreement is terminated if the pregnancy is legally ended under the Choice on Termination of Pregnancy Act, 1996. The surrogate mother has the sole right to decide on termination but must inform and consult with the commissioning parents beforehand. She is not liable to them for exercising this right, except for reimbursing payments made under Section 301 if the termination is for non-medical reasons.

Answer 20

1. Surrogate mother must inform commssioning parents of her decision to termnate before carrying it out 2. Surrogate must consukt with the commissioning parets before carrying termintion out 3. Termination is the choice of the surrogate mother ito the Choice oin termination of pregnancy Act

Answer 21

A surrogate motherhood agreement cannot involve financial rewards or compensation, except for specific claims. These include reimbursement for costs directly related to artificial fertilization, pregnancy, birth, and agreement confirmation; compensation for lost earnings due to the agreement; and insurance covering potential death or disability caused by the pregnancy. Additionally, professionals providing legal or medical services related to the agreement may receive reasonable compensation.

Answer 22

Surrogacy compensation package:R1,132,830 – R 1,231,635 Screening costs: R17,000-R25,000 Legal bill: R85,000 Surrogacy journey: R10,000-R15,000

Answer 23

(1) The identity of the parties to court proceedings with regard to a surrogate motherhood agreement may not be published without the written consent of the parties concerned. (2) No person may publish any facts that reveal the identity of a person born as a result of a surrogate motherhood agreement.

Answer 24

(1) No person may artificially fertilise a woman in the execution of a surrogate motherhood agreement or render assistance in such artificial fertilisation, unless that artificial fertilisation is authorised by a court in terms of the provisions of this Act. (2) No person may in any way for or with a view to compensation make known that any person is or might possibly be willing to enter into a surrogate motherhood agreement.

Answer 25

A child born through artificial fertilization is legally considered the child of the married couple if both spouses consented, **even if a donor's gametes were used**. Until proven otherwise, consent is presumed. Additionally, subject to s296, any child conceived using a person’s gametes is legally recognized as the child of the woman who gave birth. No legal rights or responsibilities exist between the child and the gamete donor or their relatives, except if the donor is the birth mother or her husband at the time of fertilization.

Answer 26

The Constitutional Court declared section 40 of the Children’s Act 38 of 2005 unconstitutional to the extent that it excludes permanent life partners.

Answer 27

A child born through artificial fertilization or surrogacy, or their guardian, has the right to access medical information about their genetic parents. Other non-medical information can only be accessed once the child turns 18. However, the identity of the genetic parents and surrogate mother must remain confidential. Additionally, counselling may be required before the information is disclosed, as determined by the Director-General: Health or a designated official.

Answer 28

The use of tissue, blood, blood products, or gametes removed from a living person is only allowed for prescribed medical or dental purposes. However, certain removals are prohibited, including those from individuals who are mentally ill, irreplaceable tissue or gametes from minors under 18, and placenta, embryonic, or fetal tissue, except for umbilical cord progenitor cells. The Minister may authorize exceptions and impose conditions for such removals when necessary

Answer 29

the doctor must ensure that a proper informed consent is obtained from all of the relevant persons

Answer 30

may result in the medical practitioner being charged with sexual assault under section 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

Answer 31

also amounts to a violation of their constitutional rights, e.g. their section 10 right to dignity, their section 12(2) right to bodily integrity and their section 14 right to privacy.

Answer 32

where a healthy but unwanted child is born, following negligent contraceptive advice or a negligent failed sterilisation procedure by a doctor.

Answer 33

The action for damages is brought by the parent(s) of the child for the child’s maintenance.

Answer 34

prenatal negligence claims brought, by the parents of a child who is born with birth defects or abnormalities, against a doctor who negligently failed to identify, diagnose, or inform the parents about possible birth defects or abnormalities to enable them to make an informed decision concerning termination of the pregnancy

Answer 35

The parent can claim for expenses pertaining to the maintaining and upbringing of the disabled child, including expenses for future medical treatment, as well as other special expenses pertaining to the child.

Answer 36

the availability of advanced prenatal diagnostic technologies, such as fetal ultrasonography, genetic screening, and laboratory tests, which allow doctors to detect birth defects or abnormalities before birth; and the legal right of pregnant women to terminate a pregnancy with informed consent, as provided for under section 12(2)(a) of the Constitution and section 2(1)(b) of the Choice on Termination of Pregnancy Act 92 of 1996. These elements form the foundation for such claims in legal contexts

Answer 37

prenatal negligence claims that are brought by or on behalf of the child who is born with birth defects or abnormalities, against a doctor who negligently failed to identify, diagnose, or inform the parents of the child about possible birth defects or abnormalities, with the consequence that the child has to endure a not-worth-living existence.

Answer 38

Friedman v Glicksman

Answer 39

(i) such a claim would be contrary to public policy as well as the feelings and views of the community; (ii) such a claim would establish a precedent for disabled children to sue their parents because their parents may have allowed them to be born while being aware of the risks of the children being born with birth defects or abnormalities (severe physical disabilities); and (iii) the doctors were not to blame for the child’s severe physical disabilities. Thus, the only legal measure of damage would be the difference in value between the non-existence of the child and the existence of the child with disabilities.

Answer 40

Was it plausible-from the perspective of the child not to have been born at all? If the claim of the child is to succeed it would require the court to evaluate the existence of the child against his/her non-existmec to find that the latter was plausible

Answer 41

should the law recongise an action for damages caused by negligent conduct? The essential question a court will be called to answer howvever is whther the chid shouldve been born at all?

Answer 42

The court shouldnt recognise an action of this kind

Answer 43

a genetic condition where people are born with an extra chromosome. Most people have 23 pairs of chromosomes within each cell in their body, for a total of 46. A person diagnosed with Down syndrome has an extra copy of chromosome 21, which means their cells contain 47 total chromosomes instead of 46. This changes the way their brain and body develop.

Answer 44

Trisomy 21The term “trisomy” means having an extra copy of a chromosome. Trisomy 21 occurs when a developing foetus has three copies of chromosome 21 in every cell instead of the typical two copies. This type makes up 95% of all cases of Down syndrome.

Answer 45

Langdon Down first described the condition in 1866, but its cause was a mystery for many years. In 1932, it was suggested that a chromosomal anomaly might be the cause, but the anomaly was not demonstrated until 1959.

Answer 46

* Theapplicant (H) was a very young male child who was born with Down syndrome. * H’s mother instituted the claim on his behalf in the High Court against the Fetal Assessment Centre. * The claim was based on the alleged wrongful and negligent failure of the Centre to warn H’s mother that there was a high risk of H being born with Down syndrome. * It was alleged that had H’s mother been warned she would have chosen to undergo an abortion.

Answer 47

Hclaimed for: (i) **special damages** (economic damages/compensation for tangible expenses) for past and future medical expenses, and (ii) **general damages** (non-economic damages/compensation for intangible expenses) for disability and loss of amenities of life (i.e. for the reduction of H’s ability to carry out everyday tasks (the impact the injury has on H’s quality of life). * The Centre excepted to H’s claim as being bad in law: they argued that the claim did not disclose a cause of action that was recognised by our law.

Answer 48

The High Court relied on the SCA’s decision in Stewart v Botha, which did not recognise a child’s claim for damages in the particular circumstances. * The High Court upheld the exception raised by the Fetal Assessment Centre and dismissed H’s claim with costs.

Answer 49

H argued that in the particular circumstances, it was reasonable and in the interests of justice to appeal directly to the CC (and not the SCA) since an appeal to the SCA was likely to be futile in light of the relatively recent SCA decision in Stewart v Botha.

Answer 50

The court found that developing the common law to recognize a child’s claim for damages due to negligent pre-natal diagnosis of congenital conditions or disabilities is a significant legal and constitutional matter with prospects of success. It further held that the outcome of the appeal would enable the High Court and, if needed, the Supreme Court of Appeal (SCA) to play a key role in shaping the common law, guided by Constitutional Court principles.

Answer 51

- existence as an injury, - the right not to be born, and - the nature of the harm suffered and non-existence as an alternative to a disabled life.

Answer 52

Most countries have rejected ‘wrongful life’ claims but recognised ‘wrongful birth’ claims.

MEDICALLY ASSISTED REPRODUCTION AND ‘WRONGFUL CONCEPTION’, ‘WRONGFUL BIRTH’ & ‘WRONGFUL LIFE’ LIABILITY Flashcards

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