In South Africa, the Constitutional Court ruled that unmarried partners should get automatic parental rights when the child is born through artificial fertilization. The Parliament must change the Children’s Act.
In South Africa, partners who have children through in-vitro fertilization will be both recognized as legal parents even if they are not married.
Under the current law, only the birth mother acquires automatic parental rights and responsibilities when a child is conceived through artificial fertilization. The other partner needs to go to the Children’s Court to acquire similar rights when the couple is not married.
But on June 29, the Constitutional Court of South Africa declared a section of the Children’s Act was unconstitutional because it “excludes permanent life partners as the recipients of automatic parental rights and responsibilities arising from the birth of children born as a result of artificial fertilization.”
For the country’s highest jurisdiction, the provisions of the Act resulted in unfair discrimination on the basis of marital status. The Court ordered to include the words “or permanent life partner” after the words “spouse” and “husband” in the Act.
The decision follows a lawsuit filed by a lesbian couple who got twins from in-vitro fertilization (IVF). But the twins were only regarded as children of the woman who gave birth, excluding her partner from the rights and responsibilities of motherhood.
The first applicant gametes and the gametes of a donor were fertilized during an IVF process. The embryos were then transferred into the uterus of the second applicant, resulting in her pregnancy.
The couple argued the law constituted unfair discrimination on the basis of marital status and sexual orientation, violated their dignity, and was not in a child’s best interests.
South Africa “must represent a triumph for inclusion and diversity”
The non-profit Centre for Child Law (CCL), which was admitted in the Constitutional Court as a friend of the Court, agreed with most of the arguments, except for the provisions of discrimination on the basis of sexual orientation.
It considered the law to discriminate against unmarried couples because it only provided parental rights for spouses and husbands. It also raised concerns with the proposed remedy — including the term “permanent life partner” — as it is open to varying interpretations and could lead to uncertainty.
In a unanimous judgment, the Constitutional Court confirmed the order of constitutional invalidity made by the Pretoria High Court in 2022, which make the decision final.
Judge Jody Kollapen, who wrote the judgment, commented that traditional notions of family and parenthood have undergone revolutionary changes.
For the judge, the outdated legislation elevates 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 Court held that, if with the apartheid South Africa “was characterized by an obsession with difference and exclusion, then the post-democracy era must represent a triumph for inclusion and diversity.”
South Africa has allowed same-sex marriage and adoption rights to same-sex couples since 2006.
The order will take effect retrospectively from July 2007, but its application is now suspended for 24 months for South Africa’s Parliament to amend the law.
