Con Court rules Children’s Act discriminates against same-sex couples

In a victory for same-sex and unmarried couples, the Constitutional Court of South Africa has ruled that a section of the Children’s Act is unconstitutional and must be amended.

The court on Thursday ruled in favor of two women in a permanent same-sex partnership, granting them automatic parental rights and responsibilities for their children conceived through in vitro fertilisation (IVF).

In the decision, the court declared section 40 of the Children’s Act unconstitutional for excluding permanent life partners from such rights. This landmark decision marks a significant step forward for equality and inclusivity in South Africa.

Background

The applicants, VJV and RT, two women in a permanent life partnership, desired to have children and establish their own family. They underwent the IVF process, where VJV’s gamete and a donor’s gamete were fertilised, and the resulting embryos were implanted into RT’s uterus, leading to her pregnancy and the birth of twins.

However, according to the Children’s Act, only RT was legally recognised as the mother with rights and responsibilities towards the children, while VJV had no legal status as a parent because the couple are not married.

The applicants argued that the exclusion of unmarried permanent life partners from automatic parental rights and responsibilities constituted unfair discrimination based on marital status and sexual orientation. They contended that the impugned provisions violated their dignity and were not in the best interests of the children.

The Constitutional Court’s Ruling

In a unanimous judgment, the Constitutional Court confirmed a 2022 High Court declaration of constitutional invalidity for section 40 of the Children’s Act.

The court emphasised that South Africa’s constitutional order promotes inclusivity, equality, and the recognition of diversity. It recognised that traditional notions of family and parenthood have evolved and should focus on the substance of relationships, care, commitment, and the dignity and self-worth of individuals.

The court found by exclusively granting parental rights and responsibilities to married individuals, the law disrespected the choices and commitment of permanent life partners, rendering it manifestly unfair.

Regarding sexual orientation, the court acknowledged that a relatively small percentage of heterosexual partners in a relationship would have experienced infertility and therefore would need access to artificial fertilisation. Lesbian permanent life partners, however, have no alternative means of having biologically related children.

“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,” said Justice Jody Kollapen in the judgement.

“Lesbian permanent life partners are therefore disproportionately affected by the differentiation occasioned by the impugned provisions,” he continued, noting that this constitutes indirect discrimination based on sexual orientation.

The court also held that section 40 violated the applicants’ right to dignity, as it impeded their personal fulfillment and treated them as less worthy compared to married counterparts.

It further emphasised that differential treatment of children based on whether they were born to married or unmarried parents was invidious, unconstitutional, and not in the best interests of the child.

Remedies and Future Implications

To address the constitutional defects, the court ordered the inclusion of the words “or permanent life partner” in section 40 of the Children’s Act after the terms “spouse” and “husband.” It granted Parliament a 24-month period to implement the order. If it fails to do so, section 40 will be deemed amended as ordered.

The Minister of Social Development and the Minister of Justice were ordered to pay the costs of the application including the costs of two counsel.

The Constitutional Court’s judgment marks a significant milestone in recognising the rights and dignity of same-sex and unmarried couples in South Africa. By granting automatic parental rights and responsibilities to permanent life partners, irrespective of their sexual orientation or marital status, the court has advanced the principles of equality and inclusivity.