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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
8 April 2005
CHILDREN’S BILL: DELIBERATIONS
Documents handed out:
Children's Bill [(B70-2003) Reintroduced]
Policy Workshop - 12th-13th April 2005: Final Programme
The Committee resumed its clause-by-clause consideration of the Children’s Bill. The clauses considered spanned Chapters 18 and 19 through 20 of the Bill and respectively dealt with the topics of Child Abduction, Trafficking in Children and Surrogate Motherhood.
Clause 276 Delegation of Powers and Duties
Mr M Waters (DA) said the word ‘may’ in clause 276 (1) should be changed to ‘must’ i.e. the Central Authority of the Republic must … delegate powers…….. to any family advocate.
Ms Ronel van Zyl (Researcher, SA Law Reform Commission) said it was standard procedure to grant the minister powers for the implementation of an act but still leave the exercise thereof at his/her discretion. This would not negatively impact upon the Hague Convention’s application in South Africa.
Clause 277 Powers of Court
Ms Chalmers (DA) said clause 277 might prove tedious and result in the restitution of children being unnecessarily delayed, potentially leaving the children in inappropriate situations.
Ms Van Zyl said the court customarily determined a restitution deadline at its own discretion and the Bill sought to preserve that judicial discretion. The courts appreciated the urgency of cases where children were involved. According to clause 277(2) the court could make an interim order for protective relief if so required.
Mr Waters said he had been informed that there was currently no legislation criminalising child abduction in South Africa. He asked how South Africa would give effect to the relevant UN protocol in the absence of such legislation.
Ms van Zyl said this Bill would give effect to the UN protocol. The Department was currently drafting legislation criminalising trafficking in general. In the meantime offences against children continued to receive very serious attention. Once the Department finalised the legislation on trafficking in people, that new act would repeal the provisions in the Children Bill. Trafficking in people was not a crime per se in South Africa, but the various offences such as abuse, assault, abduction involved in trafficking were all recognised as common law crimes.
Mr Waters asked what the deadline was for the implementation of the UN Protocol To Prevent Trafficking In Persons.
Ms van Zyl replied that UN protocols generally required ratification by a set minimum number of states, before the deadline came into affect. She added that United Nations’ deadlines were usually very generous.
Ms Tsivase asked how many countries had already ratified the UN Protocol To Prevent Trafficking In Persons.
Ms Chalmers (ANC) said she appreciated the usual United Nations procedures, but hoped that the ratification requirements were set very low, as the safety of children depended on this protocol.
Clause 279 Regulation
Mr Waters echoed the Johannesburg Child Welfare Society and the People’s Law Centre complaint that there were no specific guidelines in the Bill to deal with parental abductions.
Ms van Zyl replied that she would raise the matter with the State Law Advisor but added that cases of parental abduction occurred very rarely.
Clause 282 Assistance to Children who are victims of trafficking
Ms van Zyl said clause 282(1) referred only to the Director General of the Department of Social Development in accordance with the definition of the Bill. This should be amended to Director General of the Department of Home Affairs as that department had access to the information required to fulfil this function.
Ms Chalmers said this should be discussed with the Department of Home Affairs to ensure effective co-operation between all relevant parties.
Mr Waters asked where trafficking in children would fall within the schedule, indicating the gravity of criminal offences.
Ms van Zyl was unsure where child trafficking fitted into schedule of crimes, but said child trafficking was a very serious crime warranting a maximum ten years imprisonment.
Mr Waters said according to clause 283 (3) the court 'may' suspend parental responsibility if the parents or caregiver was found guilty of trafficking in children. He appreciated the need for judiciary discretion but added that ‘may’ should be changed to ‘must’.
Ms van Zyl replied that she did not want to proscribe judiciary decisions as there might be diverse circumstances requiring judiciary consideration and discretion.
Clause 284 Victims of child trafficking in Republic
Ms Van Zyl said the Department of Social Development along with the Department of Home Affairs would review this clause to ensure that any intermediate shortcomings are addressed prior to the introduction of the Bill.
Mr Waters asked whether the rights of unmarried fathers were protected in clause 285 (1)(d) and the Bill in general.
Ms Van Zyl said clause 285(1) stated that at least one of the commissioning parents must be domiciled in SA in order to prevent the occurrence of so-called "rent-a-womb" situations.
Ms Tsivase asked what role the Department of Health (DoH) played with regard to surrogate motherhood agreements.
Ms van Zyl replied that the objective of this Bill was to regulate the legal aspects of surrogacy in South Africa. The medical aspects of surrogacy were the only criterion currently considered by courts when considering surrogate agreements. The aim of the Bill was to avoid a ‘rent a womb’ situation where surrogate mothers offered their services for financial gain. Aspects of this Bill was the product of the findings of an ad hoc parliamentary committee, which the Department of Justice suggested should be included in this Bill.
Ms Tshivase asked whether the birth mother would be allowed to breast-feed the baby.
Ms van Zyl replied that the issue of breast feeding could be addressed in individual surrogacy agreements. With the help of medical treatment the commissioning mother could be able to lactate and thus breast feed the baby herself.
Ms V Niewoudt-Druschen (ANC) asked whether the surrogate mother’s spouse had legal standing in terms of a surrogacy agreement.
Ms van Zyl replied that according to clause 280, the consent of the spouse or partner of the commissioning as well as the surrogate parent was required before entering into a surrogacy agreement.
Clause 289(1)(B) Artificial Fertilization Of Surrogate Mother
A question was raised on whether the persons involved in a surrogacy agreement should return to court if the intended surrogate pregnancy had not been effected within 18 months of obtaining the courts approval.
Ms van Zyl replied that the surrogate pregnancy should be effected within 18 months of the court’s approval of a surrogacy agreement. If the pregnancy was not initiated within that period the parties had to return to court before attempting a surrogate pregnancy.
Ms Chalmers asked whether the unborn child legally belonged to the surrogate mother until birth and was thereafter considered to legally belong with the commissioning parents.
Ms van Zyl replied that regardless whose propagation matter was used to conceive the child, the law recognised the birth mother as the legal mother up to 60 days after birth thereafter the commissioning parents became the legal parents.
Clause 290 Effect of surrogate motherhood on status of child
In answer to a query, Ms van Zyl confirmed that the surrogate mother had up to 60 days after the birth of the child to opt out of the surrogacy agreement. If the child was living with the commissioning parents within this period they had to return the child to the surrogate mother. This principle also applied in the case of adoptions.
Clause 291 Termination of surrogate motherhood agreement
Ms Niewoudt-Druschen said clause 291 was unclear and requested an explanation.
Ms van Zyl said a man could potentially father a child while his female partner was not able to bear children. In this case a surrogate mother could combine the father and her genetic material to produce a child for the commissioning couple. Surrogacy required that at least one or both commissioning parents’ genetic material be employed to achieve conception.
Ms Tsivase asked whether the father would forfeit his child if the surrogate mother did not honour the surrogate agreement.
Ms van Zyl said the surrogate mother often enjoyed a close association with the commissioning parents. The Department sought to prevent a ‘rent a womb’ situation where women were used as human incubators. She said surrogate mothers could only be reimbursed for the medical costs incurred during pregnancy to avoid the unethical use of surrogacy. The father did not cede all his rights when entering a surrogate agreement. He still reserved his rights as the child’s father. The person who could potentially lose the most was the commissioning mother.
Clause 292 Effect Of Termination Of Surrogate Motherhood Agreement
Ms Chalmers asked whether a surrogate mother could terminate the pregnancy if she was the genetic mother of the baby.
Ms van Zyl replied that she could terminate the pregnancy if it was a legal abortion
Ms Chalmers asked whether she could unilaterally terminate the surrogacy agreement.
Ms van Zyl said she could terminate the agreement up to 60 days after giving birth. But she would be liable to reimburse any funds paid to facilitate the pregnancy.
Ms Tsivase asked what happened in the case of the commissioning parents divorcing during pregnancy.
Ms van Zyl said that custody would be dealt with similarly to any divorce and custody case.
Clause 293 Abortion
Ms van Zyl said that the surrogate mother would be liable to refund medical expenses to the commissioning parents if she terminated the pregnancy without informing the commissioning parents. She added that it was not an offence under clause 298 of the Bill, if the doctor did not report such an abortion.
Ms Chalmers said it was not appropriate to place the onus on the doctor to inform the commissioning parents of an abortion and clause 293 should be amended
Ms van Zyl agreed and said the onus should be placed on the surrogate mother.
The meeting was adjourned.