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The right to be born: surrogacy and the legal control of human fertility.

Lupton ML
MEDICINE AND LAW. 1989 Jan; 7(5):483-503.

South African law, as many other law systems do, has exercised a strong measure of control over the fertility of its citizens via the sanction of illegitimacy and the prohibition of marriage (and thus legitimate children) between certain individuals (those who are among the prohibited). Until last year, when the Mixed Marriages Act was abolished, marriage across the color line was prohibited in South Africa. The requirement of a valid consent by both prospective spouses in order to enter into the marriage further excludes certain categories of people from procreating legitimate children (the insane, the mentally feeble), while the requirement of consummation will exclude certain categories of paraplegics from solemnizing a valid marriage. Age restrictions on marriages and the requirements of parental consent for minors are further factors limiting the individual's freedom to procreate. These restrictions have a well-established historical basis extending over a long period of time. They can be categorized as attempting to preserve the family unit. The above provisions were formulated at a time when the law never contemplated the amazing advances in human biology which have produced conception artificially; e.g., AID, IVF, and surrogacy. The legislature, both in South Africa and elsewhere, adopted a neutral approach to this fertility revolution at first and watched the legal system struggle to adapt outmoded principles to the new technology. Legislation relating to AID and IVF eventually appeared in many jurisdictions and as a result of its delayed introduction, public opinion has now been educated to accept these new techniques and the legislation looks favorably on these new techniques. This is not the case insofar as surrogacy is concerned. South Africa, England, and Australia have produced essentially negative legislation. Certain American states, however, have adopted progressive legislation which acknowledges and accepts surrogacy. The merits of this are discussed and it is felt that it should be condoned by the South African legislature under certain conditions, as it can now be considered as furthering the interests of the family unit. (author's modified)

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