The Constitutional Court has unanimously agreed that Section 40 of the Children’s Act is unconstitutional and discriminatory when it comes to parental rights of same sex couples.
The judgement comes after a lesbian couple approached the apex court to help change a piece of legislation that only allows one of them to be the legal mother of their children.
The first and second applicants of the case were the Minister of Social Development Lindiwe Zulu, and the Minister of Justice, Ronald Lamola. Neither of the ministers opposed the 2022 application by the Pretoria High Court and abide by the decision of the court.
The applicants who are identified and VJV and RT are permanent life partners who have twins born via in-vitro fertilisation.
The couple says the Act;
•constituted unfair discrimination based on sexual orientation
• violated their dignity and others in the same position and,
• is not in the best interest of the children.
VJV’s eggs were fertilized with a donor sperm and transferred into the uterus of RT. This resulted in RT being the legal mother of the twins by virtue of giving birth to them, leaving VJV without any recognition,right or responsibility of being the twins parent. (Ambien)
In handing down judgement, Justice Jody Kollapen, says the impact of the discrimination is far reaching.
“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,”
“The message that this conveyed was that although permanent life partners had made the conscious decision to enter into parenthood, such a choice was less respected than the same choice made by married couples.”
Kollapen order the validity of Section 49 of the Children’s Act be declared unconstitutionally invalid from the 1 July 2007. However it is suspended for a period of 24months from the date of the order (29 June 2023) to allow for Parliament to fix the piece of legislation.
The court also ordered both Ministers to pay the cost of the application as well as the cost of the two councel.