Potchefstroom Electronic Law Journal (Jun 2024)
A Child's Right to Identity in the Context of Embryo Donation: Lessons from Australia and New Zealand, Part 2
Abstract
In part 1 of this article, the current level of protection for the right to identity both at the national and international levels were considered in the case of embryo donation. It was concluded that at a national level the NHA, its accompanying regulations and the Children’s Act fail to protect this right. The constitutional provisions on children’s rights are further unhelpful in providing the requisite level of protection. At an international level it was further found that neither the CRC or the ACRWC explicitly uphold the child’s right to identity in the case of embryo donation. In an attempt to address this defect, this article draws comparisons on the legal protection provided for the right to identity of children born through embryo donation in Australia and New Zealand. A number of lessons can be drawn from this comparative analysis. At a national level, the article submits that the birth certificate should indicate the child’s true origins and in addition to a register which holds the particulars of the child’s donor parents, a separate donor sibling register is also suggested. Legislative amendments are also suggested to Parliament. At an international level, the following recommendations are made: a new UN Convention which is centred around Assisted Reproductive Technology, a General Comment drafted by the Convention on the Rights of the Child to cover specific issues and interests of children, ratification of a Convention by the Hague Conference, and an investigation into the concerns raised by international embryo donation to be carried out by the International Social Service Network. Further, the article concludes that an African based instrument would not be as effective as a UN proposed solution given the cultural and religious concerns in traditional African societies.
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