Pretoria - Lesbian couples can now be recognised as equal parents of a child conceived through artificial insemination (AI).
The Gauteng High Court, Pretoria, has declared that Section 40 of the Children’s Act is inconsistent with the Constitution to the extent that it does not include the words “permanent life partner” after the words “spouse” and “husband”.
As the law stood before, the husband of the mother who was artificially inseminated was automatically regarded as the father of the child. However, it did not legally recognise the lesbian partner of the woman who is carrying the child.
The practical effect of amending the section of the Children’s Act is that the child born from artificial fertilisation is now legally regarded as the child of both life partners.
The court ordered that the details of the two mothers who took the case to court may not be revealed.
The two women told the court that they were in a lesbian same-sex permanent life partnership.
They are both regarded by their close relatives from both sides as part of the family and seen as a permanent couple by their families, friends and the broader community in which they live.
Both applicants dream of having their own children and chose artificial insemination as the route to go. They decided to challenge the “outdated” law in this regard, as legally up to now only the woman carrying the child is regarded as the mother.
They pointed out that in a female same-sex relationship, it is biologically impossible for the gametes from both spouses to be used, as there must also be male sperm involved for fertilisation to occur.
They submitted that while things have evolved regarding same-sex partnerships, the legislature did not keep up with this.
It was argued that as a consequence, there was discrimination against same-sex female couples because parental responsibilities and rights are not automatically assigned to them in terms of the legislation, thus there is no legal certainty regarding the non-carrying partner’s rights and responsibilities towards the child.
Acting Judge C van Veenendaal said great strides had been made in the past with the acknowledgement of gay and lesbian rights in terms of, among others, recognition and formalisation of union, civil union and marriage.
However, the Children’s Act remains conservatively lagging in terms of artificial fertilisation and the subsequent recognition of partners as parents.
She said it was a fact that sometimes parties, for various reasons, preferred not to get married or to have some form of formal process.
“This does not take away from parties in a relationship, which they view as a permanent, lifelong committed relationship, also wanting to procreate and establish a family with children and eventually wanting to be grandparents and eventually great-grandparents.”
The judge noted that a family is one of the core foundational institutions in all societies.
She found that it is in the best interest of both the child and the lifelong same sex partners who have children to have legal certainty.
“When children are born by artificial fertilisation and of unmarried parents, their right to family and/or parental care is violated.
“When a child is hurt at school, the school will only be obliged to call on the biological parent, while the second parent has no say over the treatment of the child,” the judge said.
She said it was clear that this section of the Children’s Act did not cater for the reality of unmarried couples who wanted to undergo artificial fertilisation, and it thus must be amended to provide for this.
Pretoria News