Joburg lesbian couple win right to both be legal parents
mambaonline.comA 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 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 C 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 violated the “right to equality and dignity” of unmarried partners who have had children by way of artificial fertilisation.
