A Child's Right to Identity in the Context of Embryo Donation: Part 1

This article investigates the extent to which the South African Legislature and the international community recognise the right to identity of a child born through embryo donation. A distinction is drawn between embryo donation, gamete donation and surrogacy. Thereafter, the article discusses the multiple aspects which the right to identity comprises, namely: personal, biological, family and siblingship identity. An assessment is made of how these various aspects are impacted by national and cross-border embryo donation arrangements. The Children's Act 38 of 2005, the Constitution of the Republic of South Africa , 1996, the National Health Act 61 of 2003 and the Regulations Relating to Artificial Fertilisation of Persons, in addition to the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) are critically examined to the extent that may be applicable to children born through embryo donation. The article concludes that neither the South African legislative framework, nor the CRC or the ACRWC explicitly upholds the child's right to identity.


Introduction and background
Since the latter part of the 20th century, the development of assisted reproductive technologies (ART) 1 has dramatically changed the structure of the nuclear family unit. 2As a child can now be conceived through non-coital technologies, 3 ART has given rise to new paradigms of parenthood to include a diversity of family forms which no longer rest on mere biological claims. 4One such family form is created by means of embryo donation.
Embryo donation refers to "the transfer of an embryo resulting from gametes that did not originate from the recipient and her partner". 5In other words, the embryo is transferred into the recipient's uterus, from which a child could be born from a successful pregnancy. 6This method of ART provides an alternative for couples where neither the female nor male partner has viable gametes or where one or both partners carry a hereditary disease. 7oreover, as the recipient mother is also the gestational carrier, this allows her to form a bond with the child throughout the pregnancy, experience childbirth and have the recipient father present throughout the process. 8his makes the recipient couple feel more connected to the child born through embryo donation. 9However, the fact remains that this child will not share any biological link, save for a gestational link, with the woman who carried him or her or with her partner. 10Additionally, this allows the recipient parents to decide whether or not to disclose this non-genetic relationship to the child. 11This underscores the reality that despite embryo donation providing relief for infertile couples who have no other option, 12 it is laden with challenges, one of which is that the child born will be reared by two parents with whom they have no genetic link. 13From a legal perspective a number of countries treat embryo donation as gamete donation due to the gestational link, which means that from the point of birth the recipient couple are the sole legal parents. 14Furthermore, because the ability to access information regarding one's genetic origins is dependent on one's awareness of the nature of one's conception, 15 a child born through embryo donation may never know such details because the decision to disclose the circumstances of the child's conception is the autonomous decision of the parents. 16 date, the sole consideration surrounding embryo donation has been about what the donating couple and receiving couple desire, not what the resulting child's rights or needs are. 17The rights of all three parties have not been given sufficient attention in embryo donation, which results in this practice being a legal and ethical grey area. 18Therefore, for the purpose of this paper, we will focus on the interests of children born through embryo donation, specifically their right to know their biological origins.This research will unpack and analyse the various components of what the concept of the right to identity encompasses.It will argue that both national and international law do not consider the unintended consequences that life through embryo donation brings.Furthermore, it will argue that it is in the best interests of the child that they are provided with the genetic and identifying information revealing their genetic origins at some point in their life.Moreover, how this right is impacted by the process of embryo donation needs to be examined.But first it is necessary to distinguish embryo donation from surrogacy and gamete donation.

Surrogacy and gamete donation versus embryo donation
A distinction can be drawn between surrogacy and embryo donation.Under South African law, surrogacy is regulated by Chapter 19 of the Children's Act and requires a lawyer to draw up a contract which must be confirmed by the High Court before the surrogacy procedure can commence. 19owever, there are no legislative provisions to govern embryo donation or regulate parental rights over the child who might result.In the case of surrogacy a genetic link is required between at least one of the commissioning parents and the child born, 20 whereas with embryo donation   the child is not genetically linked to either recipient, but has a gestational link with the recipient mother who is able to take prenatal care without relying on a birth mother.The laws of parentage are clearly set out for all parties to the surrogate motherhood agreement, 21 but no similar provision is made for parties to an embryo donation contract.In the case of surrogacy the surrogate mother must be properly counselled, 22 whereas counselling is not mandatory for the parties to an embryo donation contract.It is particularly worrying that the donor and recipient couples are not compelled to be counselled by medical health professionals with regard to the complexity of such a decision, and effectively this ignores the interests of the child to be born. 23 the same time, embryo donation is also different from gamete donation, where the resulting child has a genetic link to one of the recipients.In the case of egg donation the child born is genetically related to the father but not to the mother 24 and in sperm donation, the child born is genetically related to the mother but not to the father who will raise them. 25

Definition and scope of the concept of identity
The right to know one's identity is not a novel concept. 26The right to identity is expressly and implicitly mentioned in several international instruments and imposes both positive and negative obligations on States.Nonetheless, the exact content behind these provisions lacks a clear and complete definition. 27e right to identity was first recognised under Article 7 and Article 8 of the Convention on the Rights of the Child (CRC). 28The child's right to identity is explicitly protected in Article 8(1), which provides that: States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 29rticle 8 originated in response to the abduction of children under Argentina's military regime. 30The original proposal was: the child's right to retain a "true and genuine personal, legal, and family identity". 31However, this wording was rejected by many countries 32 as there was concern 33 that this provision would obstruct closed adoptions and anonymous gamete donor practices. 34The drafting history of Article 8 suggests that the CRC drafting committee did not have a thorough understanding and comprehensive definition of identity or identity rights. 35But what stands out from the original proposal is that the concept of identity centred on two principles: "true and genuine", in other words, authenticity and "personal, legal, and family" identitythereby indicating the multi-dimensionality of identity. 36e child's right to protection of their legal and national identities is provided for under Article 7 of the CRC The original proposal was: "The child has the inalienable right to retain his true and genuine personal, legal and family identity.In the event that a child has been fraudulently deprived of some or all of the elements of his identity, the State must give him special protection and assistance with a view to re-establishing his true and genuine identity as soon as possible.In particular, this obligation of the State includes restoring the child to his blood relations to be brought up.Article 7(1) of the CRC: "(1) The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and.as far as possible, the right to know and be cared for by his or her parents.
(2) States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless."The child's right to biological and familial identities 40 is also provided for in Article 7 of the CRC to the extent that it stipulates that the child has the "right to know and be cared for by his parents". 41While it is assumed that biological and familial parents are referred to, it would then appear to omit or overlook, for example, recipient parents versus donor parents in cases of embryo donation. 42Further confusion arises due to the fact that the child's rights to a nationality, name, and family relations are already protected under Article 7all of which are mentioned in Article 8. Hence it can be assumed that the latter provision must protect an independent right. 43 short, the provisions of the CRC relating specifically to the child's right to identity raise a number of issues with regard to other human rights, compatibility with ART practices, 44 and the nature of the obligations imposed on States Parties. 45Clearly, one cannot fully understand what the right to identity entails by referring solely to these provisions. 46entity is characterised as a "subjective sense of an invigorating sameness and continuity". 47This sense begins in childhood and stems from a developmental psychosocial process. 48Hence, there are several types of identity which tend to develop from birth: personal or individual identity, 49 family identity, 50 genetic identity 51 or biological identity, 52 gender identity, 53 ethnic identity, 54 social identity, cultural identity, 55 racial identity 56 and national identity. 57In relation to a child born through embryo donation, the child may possibly have difficulty in forming their identity in one or more of these areas.This is due to the practice of anonymity, non-disclosure and secrecy. 58Additionally, the child may also not have access to identifiable medical information surrounding the circumstances of their birth. 59 4 Identity in the context of embryo donation

The child's right to personal identity
Personal identity, also referred to as self or individual identity, pertains to a child's subjective feelings about their distinctiveness from others. 60At some point, whether consciously or unconsciously, a child will ask themself: "Who am I? What makes me special?Why am I here?" 61These questions are at the core of a child's self-identity formation. 62A child's perception of their self is critical for their overall psychological well-being since it allows them to take control of their lives and manage their experiences. 63child's right to personal identity is based on two elements: first, that "genealogical knowledge is central to the development of personal identity" 64 and second, having "access to identifying information about their biological parents". 65Donor-conceived children have often described themselves as having "a hole that can never be filled [because] part of [me] is missing" or feeling "like there is something that I should know about myself that I don't". 66These thoughts and emotions about missing information appear to be linked to a general theme of "loss". 67Although this sense of "longing to know" or feelings of "missing a piece of one's identity" may lead to detrimental consequences, it is important to note that this is not definitive for all children born through embryo donation. 68udies conducted on adopted children indicate that they show a strong interest in seeking to discover their personal identities. 69 have been shown in children who are raised by single parents. 70For example, in the case of Mikulic v Croatia, 71 a child born to unmarried parents claimed that the delays in the determination of a paternity suit had left her in a "state of prolonged uncertainty as to her personal identity". 72However, one cannot necessarily assume that all children born through embryo donation may display this same strong curiosity. 73Although adoptees and children born through embryo donation do not share a genetic link to their parents, the circumstances surrounding the latter group differ significantly. 74nd as stated previously, it is different from egg or sperm donation as in those cases, the child retains a genetic link to at least one recipient parent. 75vertheless, it cannot be assumed that the thoughts and feelings of children born through embryo donation are one-sided.Where such children feel as though their identities are incomplete, it can hardly be in their best interests to withhold information about their origins which would provide them with a more positive sense of identity by helping them to understand their history and where they come from. 76The importance of forming and understanding one's identity during childhood should not be undermined; in fact, personal identity formation begins in childhood and is particularly vigorous during adolescence. 77Children are able to conceptualise the meaning and significance of the role of embryo donation in their conception differently at different developmental stages. 78Hence, identity formation is a continuous process built over time. 79Thus, the foundational building of a child's identity formation occurs during her/his childhood. 80en information about children's origins is withheld, they may be able to pick up "hidden clues" 81 that "things [are] not quite right". 82This has the potential to seriously affect the child's ability to construct her/his personal identity. 83Therefore, the hindrance of access to identifying and non- identifying information on the donor couple deprives the child born via embryo donation of a major aspect of her/his individual autonomy: the opportunity to decide what meaning to assign to her/his personal identity.

The child's right to biological identity
The child's biological identity refers to the identity of the genetic parents who contributed their gametesthe egg and spermto form the embryo from which the child was born. 85Biological identity is a consequence of one's DNAone's genes.It demonstrates the child's biological relatedness to another. 86Thus, children's right to know their biological lineage would enable them to receive identifying information concerning the donating couples and hence, the circumstances surrounding their conception. 87nceiving through the use of donated embryos may be as close to an approximation of genetic parenthood as possible as the recipient mother carries and gives birth to the child and the father is present throughout the pregnancy. 88Nonetheless, for children who view genetic relatedness as a matter of great importance, this does not constitute an equivalent alternative. 89For some children, a genetic link to their biological parents/donating couple is as fundamental (if not more so) as their nurturement by their social parents. 90Biological identity should therefore not be overlooked. 91e significance of this aspect of identity was confirmed in Rose v Secretary of State for Health, 92 where an adult woman who had been conceived through ART launched an application to discover information about her biological father. 93The applicant described the importance of this information to her as follows: said "I felt a considerable amount of regret about how utterly senseless it had been for my parents to keep this information from me for so long.I feel that these genetic connections are very important to me, socially, emotionally, medically, and even spiritually.I believe it to be no exaggeration that non-identifying information will assist me in forming a fuller sense of self or identity and answer questions that I have been asking for a long time.I am angry that it has been assumed that this would not be the case…it is believed that if we are created artificially we will not have the natural need to know to whom we are related. 94e European Court of Human Rights found in her favour and interpreted Article 8 of the European Convention on Human Rights (ECHR), which provides for a right to respect for private and family life, to incorporate the concept of personal identity, including the right to obtain information about a biological parent. 95Furthermore, the court emphasised that personal identity is crucial and is connected to one's genetic origins. 96Such information would help her to understand her childhood better and thus complete her personal identity. 97

The child's right to family identity
Family is the foundation for identity construction.It shapes who one is, provides a sense of belonging and defines who one is through one's relationships with one's family members. 98The processes and development of the individual identity are largely influenced by the distinctive relationships and perceptions built within the family unit. 99There are two aspects which are related to the development of one's individual identity: first, belonging to a specific family and second, the particular identity role played within different family relations, in this case, the parent-child relationship. 100The first concept deals with the individual's perception and sense of identity within the particular family group. 101The second concept is centred on the complex web of relationships and the way in which family members communicate.Being a child is not independent of being a mother, a father, a parent or sibling.Family identity is largely characterised by ''the macro processes that define and distinguish one family from another.Thus, family identity is foundational to the ways in which individuals develop their frameworks for family and choose to continue -or not to continue -those relationships throughout their lives.''See Phillips Communication and Family Identity 3. their parental and intergenerational "filial" relationships, in addition to knowledge of their family heritage. 103e family is the most fundamental unit of society and has widespread support in international law. 104The recognition of the child's right to be cared for by his or her family has typically been directed toward the aim of protecting the child. 105International instruments have directly addressed situations where children are illegally separated from their parents. 106owever, when a couple relinquishes their rights to an embryo, the resulting child's right to "genuine" or "true" identity is not explicitly recognised. 107In other words, once a child is born to the recipient parents, the grown child might without directly challenging this relationship claim a right to know the facts of her/his true identity. 108For non-embryo donated children, the incorporation of their knowledge about their past and family forms part of the process of establishing a coherent sense of family identity. 109A child's family identity should thus be thought of in a dynamic way. 110While the child may maintain a biological connection with and a bond in the womb with her/his recipient mother, one's familial identity extends beyond one's social parents. 111As much as many recipient parents may not want to be reminded of the lack of genetic relationship between themselves and the child, 112 there will always remain the possibility that the lack of genetic ties may interfere with the parent-child relationship 113 and ultimately the child's perception of family identity.As embryo donation is not regulated by contract in the same way as surrogacy, 114 the child's right to a family identity is essentially left in limbo.Therefore, children born through embryo donation stand to lose the thread of family relationships which form part of their family identities. 115The question now arises whether the international legal 103 The term filial "involves both the relationship between offspring and each individual parent and the relationship between maternal and paternal lineages".Scabini and Manzi "Family Processes and Identity" 575-576.framework and South African legislature adequately provide protection for the right to identity of a child born through embryo donation.

The best interests of the child principle
The best interests of the child principle is an intrinsic standard associated with child-related matters. 116Its origins in international law lie in Principle 2 of the Universal Declaration of Human Rights (UDHR) 117 which states that: [t]he child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity.In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration. 118e principle was later codified in Article 3 of the CRC, which is to be applied in all decisions made by all organs of states, i.e. the judiciary, executive and legislature.It is important to note that the concept of paramountcy was reduced to that of primary consideration: In comparison, the ACRWC has a somewhat higher standard of "the primary consideration". 120Article 4(1) of the ACRWC states that: "[i]n all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration". 121 South African law the principle was developed through family law and welfare proceedings in the early 1900s before its inclusion as a right in the Bill of Rights (BOR). 122Section 28(2) of the Constitution states that: "A child's best interests are of paramount importance in every matter concerning the child."The term paramount is significant as it suggests a higher standard of consideration. 123ilst the principle calls for special attention when handling matters which affect children, there is no universally accepted definition of the term "the best interests of the child". 124 frequently entails deliberation on issues of ambiguity and the application thereof. 125 5 Safeguarding the child's right to identity

Safeguarding the child's right to identity at the international level
The protection and promotion of children's rights in the field of ART, specifically of children born through embryo donation, has not been the prime focus of the international human rights agenda. 126The right to identity is one of the most complex and contentious issues especially in the age of modern ART. 127ternational law sets out the rights that States who have signed and ratified human rights instruments are obliged to provide and protect. 128Nine major international human rights instruments exist. 129Among these, the following instruments will be relevant to the discussion of embryo donation: the UDHR, the ECHR, the ICCPR, the CRC and the ACRWC.
As previously mentioned, South Africa is a State Party to both the CRC and the ACRWC. 130South Africa signed and ratified the CRC on 16 th June 1995 and signed the ACRWC on 10 October 1997, which was later ratified on 7 January 2000. 131

The Convention on the Rights of the Child
Articles 7, 8 and 9 of the CRC respectively guarantee "the child's rights to a name, to citizenship, to know their parents and not to be separated from them". 132 Article 7 sets out a child's right to nationality, name and family relations: 133 The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.While name and nationality are components of the child's identity, these elements involve only a restricted notion of identity. 135Hence, we will focus on the latter element of "the right to know and be cared for by his or her parents … as far as possible". 136rst, embryo donation raises several questions with regard to the right to be "cared for" by one's parents, since the person who raises the child is the same one who gave birth to her/him, and although they may not share a genetic link they share a gestational link. 137Furthermore, the term "parents" is not defined by the CRC 138 and thus it could be construed as the right to be cared for by one's biological parents, i.e. the donating couple, or the gestational parents, i.e. the recipient couple. 139It is also important to note that the CRC Committee interprets "family" broadly to include "biological, adoptive or foster parents, or members of the extended family or community". 140Therefore, it cannot be said that Article 7(1) of the CRC advocates that children born through embryo donation have the right to be cared for by biological or genetic parents in particular. 141condly, in respect of the right to "know one's parents" under Article 7(1) of the CRC, embryo donation once more raises questions such as whether children should know about the method of their conception and the identities of their biological parents. 142Some guidance may be found in the CRC Committee's consistent criticism of nations that permit anonymous births.In respect of France, 143  to prevent and eradicate the practice and ensure rather that the information regarding the child's parents be registered and filed as a necessary measure. 144However, it must be recognised that a child's right to know her/his biological parents potentially conflicts with the rights of privacy of both the donor couple and recipient couple. 145The words "as far as possible" will always qualify the right to know and to be cared for by one's biological parents. 146ticle 8 of the CRC stipulates the following: 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
It may be debated that the "right to identity" under Article 8 of the CRC is an independent right which aims to safeguard the right to know one's genetic origins. 147The contrary may also be argued: there is no explicit mention of a right "to know one's origins" in the CRC, and as such it is a moral right, not a legal one. 148As previously mentioned, this right is not defined. 149rticle 8 creates the impression that the concept of identity is open-ended 150 as it covers nationality, name and family relations. 151e phrase "family relations as recognised by law" is unclear, 152 but academics have interpreted children's knowledge of their family relations as extending beyond knowing their social parents to encompassing their biological parents, 153 siblings, grandparents and other relativesall of whom are important to the children's sense of identity. 154ere is undoubtedly growing support for the recognition of children's interest in being informed of the truth of their biological origins because it shaping of one's identity and can even cause some psychological problems for the next generation".These feelings are intensified when the State is in possession of information concerning one's origins and refuses to disclose it.For these reasons, knowing the identity of one's birth parents is arguably a human right and a child's right.gives rise to claims of justice as opposed to the interests of adults, which form the foundation for attempts at exercising power: 155 Children have interest in having knowledge of the physical truth because it provides an underlying certainty about the world they have come into, incapable of manipulation by the adults.The children may stake their claims against those who is responsible for their being. 156us, efforts must be made to obtain children's viewpoint and caution should be exercised against adopting a paternalistic mindset that views children as individuals with lesser capacity. 157e term "preserve" suggests both the non-interference in identity and the preservation of records pertaining to genealogy and birth registration. 158oreover, the phrase "appropriate assistance" might possibly include the provision of genetic profiling in order to establish parentage 159 and facilitating access to the professional files maintained on the child. 160rguably, measures should be taken to ensure the maintenance of detailed records of children born through ART practices, particularly in embryo donation. 161nce, Article 8 implies that State Parties have the positive duty to register and preserve data concerning a child's identity, for that data to be made accessible to the child and for appropriate measures to be implemented in order to re-establish the child's identity. 162However, it is questionable to what extent many State Parties' domestic legislation recognises the fact that children have a remarkable capacity to embrace multiple relationships. 163he recording of data surrounding children born through embryo donation may be beyond the scope of many States. 164ither Article 7 nor Article 8 resolves the issue of whether children born through embryo donation are guaranteed the right to know their origins, nor do they offer any criteria as to how to balance this right against the rights of privacy of both the social and biological parents. 165Therefore, a child's identity is not directly protected by the provisions of the CRC which explicitly relate to the child's identity. 166

The African Charter on the Rights and Welfare of the Child
This regional instrument was drafted with the intent to address the CRC's omission of important socio-cultural realities and values which are particular to the African continent. 167However, the ACRWC failed to complete its objective in fully protecting the identity of the child as the child's right to preserve her/his identitywhich is found in Article 8 of the CRCis absent in the ACRWC. 168Bearing in mind, the right's importance in the African context is conceivably no less relevant globally. 169The reason for this omission is not clear as the child's right to identity is no less relevant in the African context.
The African Committee of Experts (the African Children's Charter Committee) views the rights to a name, birth registration and a nationality together as the pillars of a child's identity. 170These rights are enshrined by Article 6 of the ACRWC: 1. Every child shall have the right from his birth to a name.
2. Every child shall be registered immediately after birth.
3. Every child has the right to acquire a nationality.
State Parties to the present Charter shall undertake to ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has laws. 171e wording of Article 6 of the ACRWC is similar to that of Article 7 of the CRC, 172 although the ACRWC sets out Article 7(1) of the CRC in three subsections. 173Unlike Article 7(1) of the CRC, however, the child's right to know and be cared for by her/his parents is absent from the ACRWC.Nevertheless, these rights may be derived from a broad interpretation of Article 19 of the ACRWC, which provides for the child to maintain personal relations and direct contact with her/his parents. 175ticle 6(4) of the ACRWC complements Article 7(2) of the CRC.176 The ACRWC enshrines the ius soli principle, which provides that "a child shall acquire the nationality of the country in which it is born".177 The ACRWC obliges a State to grant nationality where no other State has granted nationality to the child.178 Nationality is generally acquired automatically at birth under the law on the basis of either descent or birth in the territory, or a combination of both and parentage.179 While birth registration itself does not confer nationality upon a child, it does establish the place of birth and parental affiliation, 180 and serves as a form of proof of the link between the child and a State. 181This is illustrated in the Kenyan Nubian Children case, in which the African Children's Charter Committee noted that "there is a strong and direct link between birth registration and nationality".182 Thus, birth registration is key 175 Article 19 of the ACRWC states that: "(1) Every child shall be entitled to the enjoyment of parental care and protection and shall, whenever possible, have the right to reside with his or her parents.No child shall be separated from his/her parents against his/her will, except when a judicial authority determines in accordance with the appropriate law, that such separation is in the best interest of the child.(2) Every child who is separated from one or both parents shall have the right to maintain personal relations and direct contact with both parents on a regular basis." Article 7(2) of the CRC: "States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless."To summarise, under international law the right to identity is an express and implicit, independent and distinctive right. 184Other rights, such as the rights to a name, nationality, family and parentage, are associated with this right. 185A lack of consensus as to the scope and meaning of this right exists due to a wide range of diverging interpretations from state practice, for example, granting the child the absolute right to know her/his genetic parents' identities, to simply strengthening practices, such as insisting on the preservation of descent or political identity. 186Nevertheless, the CRC and ACRWC frameworks give important guidance to States with the objective of achieving universal civil registration to guarantee the right to identity. 187Without a unifying definition of identity, these instruments lack the clarity and particularity needed to effectively protect this right and to balance conflicts between these efforts and other human rights. 188Thus, the current international framework does not guarantee the protection of the child's right to identity.The many facets of a child's identity call for the progressive development of international law, although ratification, while not obliging nations to pass domestic law, would provide a basis for the claims that may not otherwise be recognised. 189

Constitutional protection
The rights of children are embodied in the Constitution. 190The drafters of the Constitution recognised that children are in need of special protection as they are among the most vulnerable members of society.the drafters of the Constitution, in order to give children's rights a priority, devoted a special section to the rights of the child in the BOR. 192ction 28(1)(b) of the Constitution states that "a child has a right to family care or parental care". 193This section raises the question of whether "family care" would include the right of a child to have a relationship with her/his genetic parents, genetic family and genetic siblings? 194Furthermore, does "parental care" encompass the right to be cared for by a biological, social or legal parent? 195Hence, it is also not explicitly stated in this provision that a child has a right to know her/his biological parent or origins. 196Currently the identities of the donating couple as well as possible genetic siblings may not be disclosed in South Africa. 197wever, what is clear from section 28 of the BOR is the importance of a child's national identity. 198Section 28(1)(a) of the Constitution states that all children have a right to nationality from birth; 199 in other words, the right to a national identity.In several cases South African courts have ruled that it is in the child's best interests to have both a birth certificate and a nationality. 200The reason for the courts' rulings is that a birth certificate provides a child with an identity of her/his own through the inclusion of important information such as her/his name, date and place of birth, and the names of the parents. 201The latter information is essential as it recognises the child's right to a family identity. 202us, a birth certificate serves as a crucial step to establishing a child's legal identity, which further protects the child's right to a national identity.the child's disappearance may go undetected by national authorities, especially across international borders. 205Authorities may as a result be unwilling or unable to pursue the matter due to the child's legal invisibility. 206herefore, the child's right to a legal identity is critical for authorities as it aids them in tracing and reuniting separated children and families. 207

Legislation
Assisted reproduction is regulated in South Africa by the National Health Act 61 of 2003 (NHA) and the Regulations Relating to Artificial Fertilisation of Persons, 2016. 208 The Regulations refer to embryo donation in only a single instance with regard to the establishment of a Central Data Bank: The Director-General shall establish an electronic central data bank into which all information regarding gamete and embryo donations is stored. 209e effect of the non-disclosure of the identity of the donating couple has been discussed at length in existing publications.Despite the issues raised in connection with the anonymity of the donor couple, the NHA requires that the identities of the donors remain undisclosed. 210Section 19 of the NHA prohibits the disclosure of certain facts: No person may disclose the identity of any person who donated a gamete or received a gamete, or any matter related to the artificial fertilisation of such gametes, or reproduction resulting from such artificial fertilisation except where a law provides otherwise or a court so orders.

Similar interests 58 Widdows and MacCallum 2002 J Med Ethics 140. 59 Rispel Scope and Content of the Child's Right to Identity 31.
62 It is the way in which children view themselves or wonder what their role in this world is.Ravitsky 2010 Minnesota Journal of Law, Science and Technology 675.63 Raburu 2015 Journal of Educational and Social Research 95. 64 Turkmendag 2012 Journal of Law and Society 70. 65 Turkmendag 2012 Journal of Law and Society 70. 66 Harrigan et al 2015 Journal of Family Communication 84.67Turner and Coyle 2000 Human Reproduction 2044.68 Turner and Coyle 2000 Human Reproduction 2044.69Adoptivechildren may ask themselves questions similar to those asked by children born through embryo donation, such as "Where did I come from?Did I grow in[your]tummy?How could [my biological parents] give me away?"By adolescence, questions of personal identity intensify: "Why was I relinquished?Why did it happen to me?" See Billadeau 2014 https://adoption.com/personal-identity-issues-inadoption.
]nowledge about genetic links is that it is not mere information but it is powerful knowledge that changes relationships regardless of the wishes of those involved."SeeTurkmendag2012 Journal of Law and Society 73.Secretary of State forHealth and Human Fertilisation and Embryology  Authority [2002]2 Family Law Reports 962 (hereafter the Rose case).
" See Turner and Coyle 2000 Human Reproduction 2048.84 Amorós 2015 Catalan Social Sciences Review 8-9.85 This should not be confused with the birth mother.O'Brien https://www.irishtimes.com/opinion/major-problems-involved-in-embryo-donation-1.1138217.86 Moffat "Biological Identity" 61.87 Frith 2001 Human Reproduction 821.88 Widdows and MacCallum 2002 J Med Ethics 141.89 Turkmendag 2012 Journal of Law and Society 59. 90 Turkmendag 2012 Journal of Law and Society 59. 92 Rose v 93 The case concerned the rights of children born through artificial insemination by a donor.See Rose case para 1.
of the recipients and their ability to access ART services has been the primary focus.See Rispel Scope and Content of the Child's Right to Identity 23; Paulk 2014 Journal of Gender, Social Policy and the Law 782."[E]xcept for the possible impacts of [ARTs] on children's physical health, there has been an almost total failure to take into account other impacts of them on children."See Somerville 2007 Journal of Family Studies 183.
a technique whereby a sample of DNA is cut into fragments and separated by size in order to make a characteristic profile of DNA bands for individuals.This technique can be used to determine one's biological parents.See Sharma 2007 Indian Journal of Human Genetics 88.See also BBC date unknown https://www.bbc.co.uk/bitesize/guides/z8nxtyc/revision/6.Access to one's DNA ancestry has been made easy due to the widespread expansion of genetic databases.See Sadeghi 2019 Journal of Reproduction and Infertility 119.
African Charter on the Rights and Welfare of the Child 96.be justified by the fact that in the African context children are not always cared for by their parents.See Gose African Charter on the Rights and Welfare of the Child 94.
169See Gose 174 This exclusion may African Charter on the Rights and Welfare of the Child 95.Birth registration also plays a crucial role in preserving the child's identity against illegal changes, such as the falsification of family ties.See African Committee of Experts General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child (2014) para 23.An example of this would be where children traffickers falsify family ties to traffic children, for example, for illicit intercountry adoption.Implementation of the right to birth registration through the establishment of a strong, integrated and universal birth registration system is one measure to combat this illicit practice.See African Committee of Experts General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child (2014) para 34.
177 Gose 178 Gose African Charter on the Rights and Welfare of the Child 95. 179 De Groot and Vonk 2018 NILR 320.180 The African Committee of Experts General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child (2014) para 23: "A State's compliance with the obligation to prevent and reduce statelessness starts from taking all necessary measures to ensure that all children born on its territory are registered.These include: children born out of wedlock children born to a parent or parents who are foreigners (including those whose parents are in an irregular immigration status, or who are refugees or asylum seekers), children whose parents are unknown, and all other groups at risk of non-registration." 191As a result, 183 190 Sloth-Nielsen and Kruuse 2013 Int'l J Children's Rts 646.191 Constitutional Court of South Africa date unknown https://www.concourt.org.za/index.php/children-s-rights.
203Without proof of the child's legal identity, her/his existence is essentially invisible to the State, meaning her/his rights are not secured within the State's jurisdiction.204Withoutproof of the child's existence, it is likely that 192 One of the most significant aspects of the transition to democracy for South Africa was the adoption of a justiciable Bill of Rights which included an elaborate children's rights clause, inspired by the CRC.See Sloth-Nielsen and Kruuse 2013 Int'l J Children's Rts 646.Act seeks to give effect to all the rights set out in s 28 of the Constitution.See Preamble of the Children's Act.Children's Act; s 19 of the National Health Act 61 of 2003.Selim 2019 https://www.unicef.org/stories/what-birth-registration-and-why-does-itmatter.The right to a legal identity also encompasses the right to be afforded an identity document or card and a passport.See Page Artificial Womb Technology 39.
193 Section 28(1)(b) of the Constitution.The Children's 194 SALRC Issue Paper 32 (Project 140) para 1.19.195 SALRC Issue Paper 32 (Project 140) para 1.19.196 SALRC Issue Paper 32 (Project 140) para 1.19.197 Section 41 of the 201 Page Artificial Womb Technology 39. 202 Page Artificial Womb Technology 39. 203 204 Page Artificial Womb Technology 39.For example, the child's right to access key social services such as education, health care and social grants.See SALRC Issue

211
Paper 32 (Project 140) v. Furthermore, without legal identity documents such as a birth certificate, the child would have to travel illegally.See UN Human Rights Council Birth Registration and the Right of Everyone to Recognition Everywhere as a Person Before the Law: Report of the Office of the United Nations High Commissioner for Human Rights UN Doc A/HRC/27/22 (2014) para 30.In addition, there is a host of other consequences of not having a birth certificate.For example, a child may not be able to access health care and other social services.See Scalabrini 2019 https://www.scalabrini.org.za/news/birth-registration.205 UN Human Rights Council Birth Registration and the Right of Everyone to Recognition Everywhere as a Person Before the Law: Report of the Office of the United Nations High Commissioner for Human Rights UN Doc A/HRC/27/22 (2014) para 30.206 UN Human Rights Council Birth Registration and the Right of Everyone to Recognition Everywhere as a Person Before the Law: Report of the Office of the United Nations High Commissioner for Human Rights UN Doc A/HRC/27/22 (2014) para 30.
209GN 1165 in GG 40312 of 30 September 2016 para 5. 210 Mande Building Families 232.211 Section 19 of the National Health Act 61 of 2003.