Pretoria - In yet another breakthrough for children’s rights, the Constitutional Court gave the final greenlight to unmarried life partners, to acquire full parenting responsibilities and rights if they go the parenting route via artificial fertilisation.
The court declared section 40 of the Children’s Act unconstitutional, to the extent that it excludes permanent life partners as automatic recipients of parental rights and responsibilities.
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 Gauteng High Court, Pretoria, did declare these sections unconstitutional, but the ConCourt now confirmed that order.
The application was prompted by two women in a lesbian same-sex permanent life partnership.
The Centre for Child Law participated in the application as a friend of the court.
The women 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They decided to challenge the “outdated” law in this regard, as legally up to now only the woman carrying the child is legally regarded as the mother.
Judge Jody Kollapen who wrote the concurring Concourt judgment, this week commented in his judgment that traditional notions of family and parenthood have undergone revolutionary change under our constitutional dispensation.
“If, pre-constitutionally, South Africa was characterised by an obsession with difference and exclusion, then the post-democracy era must represent a triumph for inclusion and diversity,” he said.
What this outdated legislation does is to elevate marriage above all other forms of union, and in so doing attaches undue and unwarranted significance to one form of relationship to the exclusion of others, the judge said.
He added that the conclusion in that reasoning that only marriage can have such indisputable consequences, is contrary to the important societal recognition of relationships of a different nature.
“The impact of the discrimination on the basis of marital status is far-reaching.
“The message that is sent is that, although permanent life partners have made the conscious decision to enter parenthood, such a choice is less respected than the same choice made by married partners.”
“It devalues the applicants’ relationship and impacts their dignity.
“The discrimination from the perspective of its impact renders it manifestly unfair, with the result that the impugned provisions therefore result in unfair discrimination on the basis of marital status,” Judge Kollapen said.
He also pointed out that there can be no legitimate governmental objective for this differentiation between homosexual and heterosexual relationships.
When considering whether to assign rights and responsibilities to parents, the best interests of the child should be at the forefront of that enquiry.
“A child has the right to a beneficial legal relationship with both of their parents.
“Such parents are obliged to care and protect them; maintain contact with them; act as guardians for them; and make financial contributions towards them.
Judge Kollapen said, as the law stood before this judgment, it resulted in a child born of such circumstances as described here, being deprived of automatically assigned and legally enforceable parental care, contact and guardianship rights.
It must therefore follow that section 40 of the Children’s Act violates the Constitution, he said.
The ConCourt gave Parliament 24 months in which to rectify the offending sections in law.
Pretoria News