Within the framework of South Africa’s law of succession, constitutional values such as equality and non-discrimination have elevated children’s rights to inherit significantly. Our legal position currently has impacted both the status and inheritance rights of extramarital children, children conceived through artificial insemination, children born of surrogacy, and adopted children. The Children’s Act 38 of 2005 and the Intestate Succession Act 81 of 1987 have provided the legal framework that governs these rights.

Extramarital Children:
Historically, extramarital children (children born to parents not married to each other) were previously at a disadvantage under South African common law when it came to intestate succession. In such circumstances, the child would have only been able to inherit from their mother and her blood relatives.

This position was amended by Section 1(2) of the Intestate Succession Act, which provides that “illegitimacy shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation.” The Intestate Succession Act has resulted in extramarital children being treated equally under the law with the right to inherit from both biological parents and their respective blood relations, provided that such blood relations can be established.

Children Conceived Through Artificial Insemination:
The legal status of children born through artificial insemination is governed by Section 40 of the Children’s Act 38 of 2005. Section 40 takes cognisance of the variations depending on the marital or partnership status of the mother and whether her spouse or partner consented to the artificial insemination. 

This section states that if an unmarried woman undergoes artificial insemination using donor sperm, the child conceived as a result thereof will be deemed to be her child and may only inherit from the mother and her relatives. 

Where the woman is married and her husband has consented to the artificial insemination, the child will be legally regarded as the child of both spouses and may subsequently inherit from both partners and their respective families. In situations where the father has not given consent for the artificial insemination, the common law applies, which allows for the child to inherit only from the mother.

It is important to note that a sperm donor will not be considered as a legal parent and will not incur any parental responsibilities or rights as per Section 40(3), and therefore the child will not be able to inherit from the donor.

Children Born of Surrogacy Arrangements:
Chapter 19 of the Children’s Act regulates surrogacy, with Section 297 being particularly relevant. The Children’s Act states that a child born of a valid surrogacy agreement is deemed the legitimate child of the commissioning parent(s) (commissioning parent(s) refer to the person or couple who enters into a surrogacy motherhood agreement with a surrogate mother). This has the effect of the child acquiring full rights to inherit from the commissioning parent(s) and their extended families. 

This position, however, changes when the surrogacy agreement is invalid or terminated. The child under these circumstances is considered the child of the surrogate mother and may only inherit from her and her relations. Thus, the legal enforceability of the surrogacy agreement directly determines the child’s right to inherit. 

Adopted Children:
Before the Children’s Act came into operation, adopted children could only inherit from their biological parents and their relatives. This created inequality and uncertainty, especially for those who were fully integrated into adoptive families. 

With the Children’s Act coming into operation, together with the Intestate Succession Act, this position has changed. These two legislative frameworks have firmly established that adopted children are to be treated as if they were biological children of their adoptive parents. Section 1(4)(e) of the Intestate Succession Act expressly states that an adopted child is regarded as a descendant of the adoptive parents and not of the biological parents, except where the biological parent is also the adoptive parent or was married to the adoptive parent at the time of the adoption. Section 1(5) further affirms that the adoptive parents are considered ancestors of the child, which in turn allows for the adopted child to inherit from their adoptive parents and vice versa.

Reference list:
- Children’s Act 38 of 2005
- Intestate Succession Act 81 of 1987