Two parties get married and a view years later decide to have children, unfortunately the couple needs assisted conception in order for them to have a child. This couple now starts contemplating about their rights regarding the child as well as the rights of the third party that will be assisting in the assisted conception method.

There are many couples now a day that face the struggle of not being able to have children.  Fortunately there are numeral medical solutions to assist couples with their situation. One of the main aspects that couples may consider before starting any of the treatments, is whether they will be regarded as the child's biological parents. Due to the nature of the procedure and process couples who find themselves in a situation like this might also be unsure or possibly afraid of the rights that the third party will have towards the child being born. Lastly, looking at confidentiality they might want to know if the third party will be allowed access to any medical information of the child.

Luckily the Children's Act makes provision for instances like these. Section 40 of the Children's Act 38 of 2005 sets out the following on this topic:

(1)(a) Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as result of such fertilisation must for all purposes be regarded to be the child of those spouses as of the gamete or gametes of those spouses had been used for such artificial fertilization.

(b) For the purposes of (a) it must be presumed, until the contrary is proved, that both spouses have granted the relevant consent.

Section 41 of the Children's Act also makes provision for the question regarding access to information of the genetic parents as well as the child being conceived:

(1) A child born as a result of artificial fertilisation or surrogacy or the guardian of

 (a) Any medical information concerning that child’s genetic parents; and

(b) Any other information concerning that child’s genetic parents but not before the child reaches the age of 18 years.

(2) Information disclosed in terms of subsection (1) may not reveal the identity of the person whose gamete was or gametes were used for such artificial fertilisation or the identity of the surrogate mother.

(3) The Director-General: Health or any other person specified by regulation may require a person to receive counselling before any information is disclosed in terms of subsection (1).


According to Unicef Unite for Children:

“Where a couple, in a marriage, decide to have a child through artificial insemination the child that is born is seen as being the couple’s biological child. This is the situation even if the child of a married couple was conceived with the gamete or gametes of another person, outside of the marriage.”


By taking into consideration all of the above mentioned resources, it is safe to say that this couple will be regarded as the biological parents of the child being born by assisted conception and the third party will not have any rights or responsibilities towards the child. Therefore the couple can proceed with the process of assisted conception and they will enjoy the full rights over their child.

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