A lesbian couple have succeeded in their legal bid to amend the Children’s Act so that they are both recognised as legal parents of their surrogate babies.
In a landmark decision, the High Court in Pretoria ruled that Section 40 of the act, which deals with surrogacy, is unconstitutional because it is not inclusive of unmarried parents.
The case concerned a lesbian couple of almost six years who had dreamed of having children and a family together. To make this a reality, the one woman donated her eggs which were fertilised via a sperm donor and then carried by her partner.
However, because they are not married, the law would only allow the parent who gave birth to be registered as the mother. The other woman would then have to go through the process of applying to adopt the children.
“The Children’s Act remains conservatively lagging in terms of artificial fertilisation and the subsequent recognition of partners as parents,” said Acting Judge C Van Veenendaal in her 22 February ruling.
“It is a fact that sometimes parties, for various reasons prefer 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…”
Judge Van Veenendaal found that Section 40 of the Children’s Act “unfairly discriminates on the basis of marital status in terms of its treatment of children born in or out of wedlock” and violates the “right to equality and dignity” of unmarried partners who have children by way of artificial fertilisation.
A child’s right to family and/or parental care is also violated by the act, for example, “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 ordered that numerous changes be made to Section 40 of the Children’s Act, including that the words “or permanent life partners” be added wherever it refers to “spouse” or “husband”.
She referred the act to Parliament for the legislation to be amended but her revisions will apply in the meantime.
The couple, who cannot be named by order of the court, are now the parents of weeks-old twin boys. “For me, knowing that I am in the position to make life better for every gay and lesbian, brings a sense of purpose. I am ecstatic,” one of the mothers told Times Live.
The couple’s attorney, Adele van der Walt, added: “The significance of the judgment is legal certainty for both parents to have equal rights and responsibilities, and legal certainty for any children born.”