A Child's Right to Identity in the Context of Embryo Donation: Part 1
DOI:
https://doi.org/10.17159/1727-3781/2024/v27i0a15131Keywords:
Assisted reproductive technologies, disclosure, donor-conceived child, embryo donation, gamete donorAbstract
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
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Literature
Alizadeh L and Samani R "Using Fertile Couples as Embryo Donors: An Ethical Dilemma" 2014 Iranian Journal of Reproductive Medicine 169-174
Amorós E "Donor Anonymity, or the Right to Know One's Origins?" 2015 Catalan Social Sciences Review 1-9
Armuand G et al "Attitudes Towards Embryo Donation Among Healthcare Professionals Working in Child Healthcare: A Survey Study" 2019 BMC Pediatrics 1-9
Besson S "Enforcing the Child's Right to Know her Origins: Contrasting Approaches Under the Convention on the Rights of the Child and the European Convention on Human Rights" 2007 IJLPF 137-159
Brezina P and Zhao Y "The Ethical, Legal, and Social Issues Impacted by Modern Assisted Reproductive Technologies" 2011 Obstetrics and Gynecology International 1-7
Buia A Survey on the CRC Committee's Concluding Observations on the Last EU Countries' Reports (ChildONEEurope Florence 2006)
Clark B "A Balancing Act? The Rights of Donor-Conceived Children to Know their Biological Origins" 2012 Ga J Int'l & Comp L 621-661
Clark P "Ethical Implications of Embryo Adoption" in Atwood CS and Meethal SV (eds) Pluripotent Stem Cell Biology: Advances in Mechanisms, Methods and Models (IntechOpen Rijeka 2014) 213-229
De Groot G and Vonk O "Acquisition of Nationality by Birth on a Particular Territory or Establishment of Parentage: Global Trends Regarding Ius Sanguinis and Ius Sol" 2018 NILR 319-335
De Melo-Martin I "The Ethics of Anonymous Gamete Donation: Is There a Right to Know One's Genetic Origins?" 2014 The Hastings Centre Report 28-35
Doek J "The CRC and the Right to Acquire and to Preserve a Nationality" 2006 Refugee Survey Quarterly 26-32
Eekelaar J Family Law and Personal Life 2nd ed (Oxford University Press Oxford 2017)
Epp A and Price L "Family Identity: A Framework of Identity Interplay in Consumption Practices" 2008 Journal of Consumer Research 50-70
Ethics Committee of the American Society for Reproductive Medicine "Guidance Regarding Gamete and Embryo Donation" 2021 Fertility and Sterility 1402-1403
Frith L "Gamete Donation and Anonymity: The Ethical and Legal Debate" 2001 Human Reproduction 818-824
Frith L, Blyth E and Lui S "Family Building Using Embryo Adoption: Relationships and Contact Arrangements Between Provider and Recipient Families – A Mixed-Methods Study" 2017 Human Reproduction 1092-1099
Golombok S and Tasker F "Socioemotional Development in Changing Families" in Lerner R (ed) Handbook of Child Psychology and Developmental Science 7th ed (Wiley Hoboken 2015) 1-45
Golombok S et al "Families Created by the New Reproductive Technologies: Quality of Parenting and Social and Emotional Development of the Children" 1995 Child Development 285-298
Golombok S et al "Children Conceived by Gamete Donation: Psychological Adjustment and Mother-Child Relationships at Age 7" 2011 Journal of Family Psychology 230-239
Golombok S et al "Single Mothers by Choice: Mother-Child Relationships and Children's Psychological Adjustment" 2016 Journal of Family Psychology 409-418
Gose M The African Charter on the Rights and Welfare of the Child: An Assessment of the Legal Value of its Substantive Provisions by Means of a Direct Comparison to the Convention on the Rights of the Child (Community Law Centre, University of the Western Cape Cape Town 2002)
Haydon C Identity Development and Its Relationship to Family History Knowledge Among Late Adolescent University Students (Master of Science thesis Brigham Young University 2010)
Harrigan M et al "It's Just Who I am … I Have Brown Hair. I Have a Mysterious Father: An Exploration of Donor-Conceived Offspring's Identity Construction" 2015 Journal of Family Communication 75-93
Hodgkin R, Newell P and UNICEF Implementation Handbook for the Convention on the Rights of the Child 3rd ed (UNICEF New York 2007)
Imrie S et al "Families Created by Egg Donation: Parent-Child Relationship Quality in Infancy" 2019 Child Development 1333-1349
Kidd W Culture and Identity (Palgrave/MacMillan Basingstoke 2002)
Kreppner K "The Child and the Family: Interdependence in Developmental Pathways" 2000 Psicologia: Teoria e Pesquisa 11-22
Lefaucheur N "The French 'Tradition' of Anonymous Birth: The Lines of Argument" 2004 IJLPF 319-342
Ludlow K "Genetic Identity Concerns in the Regulation of Novel Reproductive Technologies" 2020 Journal of Law and the Biosciences 1-30
MacCallum F "Embryo Donation Parents' Attitudes Towards Donors: Comparison with Adoption" 2009 Human Reproduction 517-523
MacCallum F and Golombok S "Embryo Donation Families: Mothers' Decisions Regarding Disclosure of Donor Conception" 2007 Human Reproduction 2888-2895
Mande N Building Families Through Assisted Reproductive Technologies in South Africa: A Critical Legal Analysis (Doctor of Laws-dissertation, University of South Africa 2016)
Moffat K "Biological Identity" in Monk N et al (eds) Reconstructing Identity (Palgrave Macmillan Cham 2017) 61-82
Nosarka S and Kruger T "Surrogate Motherhood" 2005 SAMJ 942-945
O'Donovan K "'Real' Mothers for Abandoned Children" 2002 Law and Society Review 347-378
Page C Artificial Womb Technology and the Safeguarding of Children's Rights Through an Analysis of the Right to Identity (LLM-dissertation Leiden University 2017)
Paulk L "Embyonic Personhood: Implications for Assisted Reproductive Technology in International Human Rights Law" 2014 Journal of Gender, Social Policy and the Law 781-823
Phillips KE Communication and Family Identity: Toward a Conceptual Model of Family Identity and Development of the Family Identity Inventory (PhD-dissertation University of Nebraska 2017)
Raburu P "The Self – Who am I?: Children's Identity and Development Through Early Childhood Education" 2015 Journal of Educational and Social Research 95-102
Ravitsky V "Knowing Where You Come From: The Rights of Donor-Conceived Indiviuals and the Meaning of Genetic Relatedness" 2010 Minnesota Journal of Law, Science and Technology 665-684
Ravitsky V "The Right to Know One's Genetic Origins and Cross-Border Medically Assisted Reproduction" 2017 Israel Journal of Health Policy Research 1-6
Richardson P "Redefining Motherhood: How Reproductive Technologies Change the Way We Think About Motherhood" 2015 York Online Undergraduate Research Review 79-85
Rispel SL The Scope and Content of the Child's Right to Identity in the Context of Surrogacy (LLM-dissertation University of the Western Cape 2017)
Robertson J "Gay and Lesbian Access to Assisted Reproductive Technology" 2004 Case W Res L Rev 323-372
Ronen Y "Redefining the Child's Right to Identity" 2004 IJLPF 147-177
Sadeghi M "Coming Soon: Disclosing the Identity of Donors by Genealogical Tests of Donor Offspring" 2019 Journal of Reproduction and Infertility 119-120
South African Law Reform Commission Issue Paper 32 (Project 140): The Right to Know One's Own Biological Origins (SALRC Pretoria 2017)
Samani R "Debate in Embryo Donation: Embryo Donation or Both – Gamete Donation?" 2009 Reproductive BioMedicine Online 29-33
Sandberg K "The Rights of LGBTI Children Under the Convention on the Rights of the Child" 2016 Nordic Journal of Human Rights 337-352
Scabini E and Manzi C "Family Processes and Identity" in Schwartz SJ (eds) Handbook of Identity Theory and Research (Catholic University of the Sacred Heart Milan 2011) 569-588
Schachter E "Identity Constraints" 2002 Human Development 416-433
Sharma R "DNA Profiling: Social, Legal, or Biological Parentage" 2007 Indian Journal of Human Genetics 88-92
Skelton A "Too Much of a Good Thing? Best Interests of the Child in South African Jurisprudence" 2019 De Jure 557-579
Skujyte D Rights of African Children Under the African Charter on the Rights and Welfare of the Child: The Addition to the Universal Protection of a Child (LLM-dissertation University of Tilburg 2011)
Sloth-Nielsen J and Kruuse H "A Maturing Manifesto: The Constitutionalisation of Children's Rights in South African Jurisprudence 2007-2012" 2013 Int'l J Children's Rts 646-678
Sokol J "Identity Development Throughout the Lifetime: An Examination of Eriksonian Theory" 2009 Graduate Journal of Counselling Psychology 1-11
Somerville M "Children's Human Rights and Unlinking Child–Parent Biological Bonds with Adoption, Same-Sex Marriage and New Reproductive Technologies" 2007 Journal of Family Studies 179-201
Stewart G "Interpreting the Child's Right to Identity in the UN Convention on the Rights of the Child"1992 Fam L Q 221-233
Supaat D "Establishing the Best Interests of the Child Rule as an International Custom" 2014 International Journal of Business, Economics and Law 109-114
Takàcs N "The Threefold Concept of the Best Interests of the Child in the Immigration Case Law of the ECtHR" 2021 Hungarian Journal of Legal Studies 96-114
Tasker F et al "Receiving, or 'Adopting,' Donated Embryos to Have Children: Parents Narrate and Draw Kinship Boundaries" 2018 Genealogy 1-20
Teman E and Berend Z "Surrogacy as a Family Project: How Surrogates Articulate Familial Identity and Belonging" 2020 Journal of Family Issues 1-23
Turkmendag I "The Removal of Donor Anonymity in the UK: The Silencing of Claims by Would-be Parents" 2008 IJLPF 283-310
Turkmendag I "The Donor-Conceived Child's 'Right to Personal Identity': The Public Debate on Donor Anonymity in the United Kingdom" 2012 Journal of Law and Society 58-75
Turner AJ and Coyle A "What Does it Mean to be a Donor Offspring? The Identity Experiences of Adults Conceived by Donor Insemination and the Implications for Counselling and Therapy" 2000 Human Reproduction 2041-2051
Turner J et al "Personal and Social Identity: Self and Social Context" Unpublished paper presented to the Conference on "The Self and the Collective" (7-10 May 1992 Princeton)
Von Korrff L and Grotevant H "Contact in Adoption and Adoptive Identity Formation: The Mediating Role of Family Conversation" 2011 Journal of Family Psychology 393-401
Wade K "The Regulation of Surrogacy: A Children's Rights Perspective" 2017 Child Law Quarterly 1-21
Walters R Embryo Adoption as an Ethical Option for Couples Faced with Infertility (Senior-dissertation Liberty University 2016)
Wanggren K, Prag F and Skoog Svanberg A "Attitudes Towards Embryo Donation in Swedish Women and Men of Reproductive Age" 2013 Upsala Journal of Medical Sciences 187-195
Widdows H and MacCallum F "Disparities in Parenting Criteria: An Exploration of the Issues, Focusing on Adoption and Embryo Donation" 2002 J Med Ethics 139-142
Zegers-Hochschild F et al "International Committee for Monitoring Assisted Reproductive Technology (ICMART) and the World Health Organization (WHO) Revised Glossary of ART Terminology, 2009" 2009 Fertility and Sterility 1520-1524
Case law
AB v Minister of Social Development 2017 3 SA 570 (CC)
Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative on behalf of Children of Nubian Descent in Kenya v The Government of Kenya (ACERWC) case number 002/Com/002/2009 of 20 April 2009
Mikulic v Croatia (ECtHR) Appl No 53176/99 of 7 February 2002
Rose v Secretary of State for Health and Human Fertilisation and Embryology Authority [2002] 2 Family Law Reports 962
Legislation
Children's Act 38 of 2005
Constitution of the Republic of South Africa, 1996
National Health Act 61 of 2003
International instruments
African Charter on the Rights and Welfare of the Child (1990)
African Committee of Experts General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child (2014)
European Convention for the Protection of Fundamental Rights and Freedoms (1950)
International Covenant on Civil and Political Rights (1966)
UN Committee on the Rights of the Child General Comment No 14 (2013) on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (Art 3, Para 1) (2013)
UN Convention on the Rights of the Child (1989)
UN Human Rights Committee CCPR General Comment No 17 on Article 24 (Rights of the Child) (1989)
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)
Universal Declaration of Human Rights (1948)
Government publications
GN 1165 in GG 40312 of 30 September 2016
GN 251 in GG 44321 of 25 March 2021
Internet sources
BBC date unknown DNA and Inheritance https://www.bbc.co.uk/bitesize/guides/z8nxtyc/revision/6 accessed 14 March 2021
Billadeau S 2014 Personal Identity Issues in Adoption: Tips for Helping your Internationally Adopted Child Find their Personal Identity https://adoption.com/personal-identity-issues-in-adoption accessed 1 December 2020
Cherry K 2022 The Nature vs Nurture Debate: Genetic and Environmental Influences and How They Interact https://www.verywellmind.com/what-is-nature-versus-nurture-2795392 accessed 1 December 2020
Child Rights International Network date unknown Article 8: Preservation of Identity https://archive.crin.org/en/home/rights/convention/articles/article-8-preservation-identity.html accessed 22 November 2020
Constitutional Court of South Africa date unknown Children's Rights https://www.concourt.org.za/index.php/children-s-rights accessed 6 February 2021
Dinsmore B date unknown Building Your Family Through Embryo Donation https://pved.org/buildingfamily.php accessed 1 December 2020
Faust K 2019 Why Embryo Adoption Damages Children's Rights https://thefederalist.com/2019/12/04/why-embryo-adoption-damages-childrens-rights accessed 30 March 2020
Iruka IU et al 2021 Ethnic-Racial Identity Formation in the Early Years https://equity-coalition.fpg.unc.edu/wp-content/uploads/IIruka-et-al_Ethnic-Racial-Identity-Collaborative-Research-Summary-2021.pdf accessed 17 January 2024
MacCallum F 2009 Embryo Donation is not like Adoption https://www.bionews.org.uk/page_92056 accessed 3 May 2020
McCombs T and Gonzalez JS 2007 Right to Identity https://scm.oas.org/pdfs/2007/cp19277.pDF accessed 17 January 2024
O'Brien B 2004 Major Problems Involved in Embryo Donation https://www.irishtimes.com/opinion/major-problems-involved-in-embryo-donation-1.1138217 accessed 23 November 2020
Scalabrini 2019 Birth Registration https://www.scalabrini.org.za/news/birth-registration accessed 6 February 2021
Selim L 2019 What is Birth Registration and Why Does It Matter? https://www.unicef.org/stories/what-birth-registration-and-why-does-it-matter accessed 21 March 2021
Swink D 2011 Outsourcing Reproduction: Embryos and Surrogacy Services in the CyberProcreation Era https://core.ac.uk/download/pdf/
pdf accessed 17 January 2024
United Nations Human Rights Office of the High Commissioner date unknown International Human Rights Law https://www.ohchr.org/
EN/ProfessionalInterest/Pages/InternationalLaw.aspx accessed 6 February 2021
Van Niekerk S 2018 Modern Families: Surrogacy is an Option https://www.golegal.co.za/surrogacy-south-africa-children accessed 8 July 2020
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