ConCourt declares Children’s Act section on same-sex parental rights invalid

The Constitutional Court (ConCourt) has declared Section 40 of the Children’s Act unconstitutional and invalid as it discriminates against couples of the same-sex in respect to parental rights.

The ConCourt delivered its judgment on Thursday.

A lesbian couple had asked the apex court to change the provision in the legislation as it only allowed one person in a same-sex relationship to legally be the mother of a child.

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The applicants, who are permanent life partners and have twins born via in-vitro fertilisation (IVF), argued that the law did not automatically assigned parental responsibilities and rights to both of them.

Minister of Social Development Lindiwe Zulu and Justice Minister Ronald Lamola, who didn’t oppose the couple’s application, were respondents in the case.

Arguments

During the court proceedings, Justice Jody Kollapen said the couple had contended the provisions constituted unfair discrimination on the basis of marital status and sexual orientation.

They also argued that Section 40 violated the dignity of others in their position and were not in the best interests of a child.

“They contend that it would be in the best interests of their children for them to be regarded as the legally children of both the applicants.

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“They further argue that it’s important the first applicant be regarded as a legal parent of the children for many reasons including the rights, but also responsibilities which are granted to and expected of a legal parent which otherwise would not apply in this matter thereby disadvantaging the child,” Justice Kollapen said.

Kollapen indicated that the Centre for Child Law, which entered the fray as a friend of the court, had also raised concerns about the proposed remedy to Section 40.

“It’s argument is that the inclusion of the words permanent life partner as a long term measure would not properly cure the defects identified as the term is open to varying interpretations and could lead to uncertainty which would in in turn undermine the best interests of the child.”

Unfair discrimination

The ConCourt in a unanimous judgment, therefore, upheld the Pretoria High Court’s 2022 ruling.

“The court holds that the impugned provisions singles out marriage as the only relationship that the law recognises and then assigns parental rights and responsibilities to married persons only in respect of a child born as a result of artificial insemination,” Kollapen said.

“Accordingly, the court finds that the impugned provisions create a differentiation of treatment applied to two categories of persons – married on the one hand and unmarried on the other. Further, this court finds that the impact of the discrimination on the basis of marital status is far-reaching… the messages that this conveys is that though permanent life partners have made a conscious decision to enter parenthood such a choice is less respected that the same choice made by married partners.”

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Kollapen said the court also concluded that Section 40 constituted discrimination on the basis of sexual orientation.

“It is biologically impossible for two females to reproduce casually. They are entirely reliant on the artificial fertilisation process and, by implication, Section 40 of the Children’s Act to realise their dream of becoming parents to their biological children.

“Men in a same-sex partnership would not rely on Section 40 of the Children’s Act for the conception of their biological children as neither man would be capable of being artificially fertilised.”

The ConCourt further found that the provisions were unconstitutional as it discriminated against children born out of wedlock from a same-sex relationship.

“The provisions are not consistent with the best interests of the child and limits their fundamental rights.”

Watch the proceedings below:

Remedies

Kollapen, therefore, declared Section 40 of the Children’s Act as unconstitutional and ordered the declaration of the constitutional invalidity of he law to take effect from 1 July.

However, the constitutional invalidity was suspended for 24 months to afford Parliament to fix the Act.

The court ordered that unmarried couples of the same-sex be legally recognised as the biological parents of a child conceived by artificial insemination.

Meanwhile, both ministers were ordered to pay the costs of the application including the costs of two counsel.