The Supreme Court in Pretoria has declared unconstitutional part of the Children’s Act, which regulates the parental rights of couples who father children through artificial insemination.
This judgement is groundbreaking for unmarried couples in permanent, lifelong partnerships who want to have children through artificial insemination.
This is because the to trade did not automatically recognize both persons in the partnership as legal parents of any child conceived by artificial insemination.
By law, when a married couple has a child through artificial insemination, both partners are automatically recognized as the legal parents of their child. This is true even in cases where only one spouse has donated a gamete to conceive the child, such as their sperm or an egg.
When an unmarried couple, or a couple in a permanent partnership, have a child through artificial insemination, only the person who donated the sperm or egg was recognized as the legal parent.
Their partner is only recognized if they make a formal request to a Supreme Court.
In 2021, an unmarried lesbian couple started proceedings in the High Court against the Minister of Social Development to declare these articles of the law unconstitutional.
The minister did not oppose the case.
In court papers, the couple explained that they want to have children through artificial insemination. However, the law hindered them from starting a family. The couple said this was unconstitutional for two main reasons.
First, not automatically recognizing both people in a life partnership as the legal parents of a child they have through artificial insemination was unfair discrimination, especially against same-sex couples and those who chose not to marry.
Second, they argued that the law violated the constitutional rights of children of unmarried same-sex couples. The reason for this was that not automatically recognizing both partners as the legal parents would harm the children they want through artificial insemination.
For example, children they have would not be entitled to inherit from their estate if they died without a will.
This also violated the right of children and their parents to family life, as one parent would not have a legal right to participate in important decisions affecting their children, such as their removal from the country by the other partner and a right of access to the children if the couple decides to separate or the other partner dies.
The Center for Juvenile Justice, admitted as amicus curiae [friend of the court] in the case, disagreed that the law unfairly discriminated specifically against same-sex couples.
They argued that same-sex couples who are married or in civil union are both automatically recognized as the legal parents of any child they father through artificial insemination.
The Center did agree that parts of the law were unconstitutional, but for a different reason.
The failure of the law to automatically make unmarried same-sex and heterosexual couples in permanent life partnerships the parents of any child they conceive through artificial insemination constituted unfair discrimination based on their martial status, the Center said.
In a ruling of 24 February, acting judge Carla van Veenendaal agrees that it is not a question of whether the law discriminates against same-sex couples in particular.
Instead, the question was whether excluding unmarried partners in a committed relationship from the same rights accorded to married people was constitutionally justified.
The court ruled that there was no legitimate reason to treat unmarried couples in a permanent partnership differently from married couples.
“It is a fact that, for various reasons, parties sometimes prefer not to get married or have some form of formal process. This does not alter the fact that parties in a relationship, which they see as a permanent, lifelong committed relationship, also want to procreate and start a family with children,” says Van Veenendaal.
She said the main concern often expressed about recognizing permanent life partnerships was that the couple had not formally announced their intention to stay together.
However, this was not really a problem, because couples often get divorced. While the rights of children of married couples are protected by the courts, children of unmarried parents do not receive the same protection.
“The law still requires marriage to start a family and does not provide for families that do not fit this model,” said Van Veenendaal.
She found that by prioritizing marriage, the law discriminated against children born out of wedlock and violated the rights of unmarried couples and their children.
The court has ruled that the relevant section of the Children’s Act dealing with artificial insemination must now contain the words “or permanent life partner” when referring to a “spouse”.
This would ensure that the unmarried parents who have children through artificial insemination are recognized as legitimate parents in the same way as married couples.
By Geoffrey Allsop
This article first appeared on GroundUp and has been republished with permission. Read the original article here†