2013 Exam paper

Question 1:

 

 

Maradeth and Derek are life partners. They decided to make use of a surrogacy agency, Baby Inc. to find a suitable surrogate mother. Mrs. Lexi Grey, a director of Baby Inc. guaranteed that their surrogate mothers are all medically fit to give birth to healthy babies.  

 

Derek’s sperm and Maradeth’s ova were harvested and artificially fertilised. Dr. Montgomery attended to implant the fertilise eggs into Arizona, the surrogate mother. One month later Maradeth and Derek received confirmation that they were going to have twins.

 

During the second trimester of the pregnancy, Arizona was involved in a vehicle accident. Shortly after the accident Dr. Montgomery performed an ultra sound on Arizona and noticed that one of the twins was developing a breathing problem. Dr. Montgomery informed Maradeth and Derek that due to the injury sustained during the accident, one of the twins will not be able to live a normal life. Dr. Montgomery suggested that blood tests be performed to confirm his prognosis. Arizona however refused to give her consent to draw blood from her or the unborn babies and threatened to terminate the pregnancy if Maradeth and Derek were going to insist on blood tests.  

 

During the third trimester of the pregnancy Arizona had to undergo an emergency operation after the twin with the lung injury, showed signs of distress. During the emergency delivery it was discovered that the babies were conjoined twins as their two bodies fused at the pelvic bone, resulting in them sharing a pelvis. At birth the twin with the lung injury stopped breathing for 2 minutes. Luckily, Dr. Montgomery managed to resuscitate (revive) him by using a respirator. The twins were immediately separated after delivery.

 

Dr. Montgomery indicated that Baby Inc. should have scanned Arizona for addiction problems, as he discovered that Arizona was using non prescribed drugs during the pregnancy that probably contributed towards the twins being born as conjoined twins. After being accused of the aforementioned, Arizona decided that she wanted to cancel the surrogacy agreement. 

 

Derek, a manic depressant disappeared shortly after the birth of the twins.   

 

 

 

 

 

 

 

 

 

Answer the following questions based on the aforementioned set of facts.

 

 

1.1     Considering that one of the twins is not ‘viable’, as well as considering the requirements for the beginning and end of legal personality and the provisions of the Birth and Death Registration Act 51 of 1992, advise Maradeth and Derek on whether they are obliged to register the babies, and if not, what is expected of them?                                                                                               (10)

                                                           

 

1.2     Considering section 12(2) of the Constitution of South Africa 1996 providing for “everyone’s right to bodily and psychological integrity” as well as section 40 of the Children’s Act 38 of 2005, does Maradeth have the right to demand that Arizona and/or the babies must undergo blood testing? In addition what would be the requirements should Arizona have terminated the pregnancy in the second trimester of her pregnancy? Reference must be made to legislation and case law in substantiating your answer.                                                                    (20)

 

 

1.3     As Derek was not married to Maradeth and the children were born by means of surrogacy, what is the presumption regarding paternity under these circumstances. In addition discuss whether Derek would have any parental rights and responsibilities in respect of the born children. Reference must be made to legislation and case law in substantiating your answer.                           (20)

 

 

1.4     Considering that Arizona was involved in a vehicle accident, would Maradeth be successful in instituting a civil action against the Road Accident Fund, for pre-natal injury to one of the twins? Reference must be made to legislation and case law in substantiating your answer.                                                         (20)

 

 

1.5     How would Maradeth go about in having Derek declared presumably dead?                                                                                                                       (10)

 

 

 

Question 2:

 

Discuss fully the question of the liability of a minor who fraudulently misrepresents himself to an adult, or claims to be emancipated or to be acting with the necessary assistance following which the party contracts with him on these grounds. If there is liability, on what grounds is the minor liable?                                                    (10)

 

 

 

 

 

Question 3:

 

Briefly explain how the following diverse factor/s may affect a person’s legal capacity:

 

8.1     A juristic act performed by a certified mentally ill person during a lucidum intervallum?                                                                                            (5)

 

 

8.2     An intoxicated blind person shooting at a noise outside his house, killing his neighbour.                                                                                                   (5)

 

 

 

THE END