Court finds that Children’s Act discriminates against unmarried parents

An unmarried lesbian couple brought a case to the High Court which has resulted in a groundbreaking judgment. Archive Photo: Ashraf Hendricks

• Both people in a relationship in which a child is conceived through artificial insemination should have legal parental rights, the high court in Pretoria has ruled.

• The Children’s Act did not automatically recognise both people in the partnership as the legal parents in this situation, if they were not married.

• The court said the section of the Act unfairly discriminated against children born out of wedlock and violated the rights of unmarried couples and their children.

The High Court in Pretoria has declared part of the Children’s Act, which regulates the parental rights of couples who conceive children through artificial insemination, unconstitutional.

This judgment is groundbreaking for unmarried couples in permanent life-long partnerships who want to have children through artificial insemination. This is because the Act did not automatically recognise both people in the partnership as the legal parents of any child conceived through artificial insemination.

According to the Act, when a married couple has a child through artificial insemination, both partners are automatically recognised as the legal parents of their child. This applies even in cases when only one spouse donated a gamete to conceive the child, such as their sperm or an ovum.

When an unmarried couple, or a couple in a permanent life partnership, have a child through artificial insemination, only the person who donated the sperm or ovum was recognised as the legal parent. Their partner will only be recognised if they submit a formal application to a high court.

Court proceedings

In 2021, an unmarried lesbian couple started proceedings in the High Court, against the Minister of Social Development, to declare these sections of the Act 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 Act was a barrier to them starting a family. The couple said that this was unconstitutional for two main reasons.

First, the failure to automatically recognise both people in a life partnership as the legal parents of any child they have through artificial insemination constituted unfair discrimination mostly against same-sex couples and those who chose not to get married.

Second, they argued that the Act violated the constitutional rights of children born to unmarried same sex couples. This was because the failure to automatically recognise both partners as the legal parents would prejudice any children they choose to have by artificial insemination.

For example, any children they have would not have a right to inherit from their estate if they died without a will. This also violated the rights of children and their parents to a family life because 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 should the couple decide to separate or the other partner dies.

The Centre for Child Law, admitted as an amicus curiae [friend of the court] in the matter, disagreed that the Act unfairly discriminated specifically against same sex couples. They argued that same sex couples who are married, or in a civil union, would both automatically be recognised as the legal parents of any child that they conceive through artificial insemination.

The Centre did agree that sections of the Act were unconstitutional, but for a different reason. The failure of Act to automatically make unmarried same sex and heterosexual couples in a permanent life partnership the parents of any child they conceive through artificial insemination constituted unfair discrimination based on their martial status, the Centre said.

In a ruling on 24 February, Acting Judge Carla van Veenendaal agreed that the issue was not whether the Act unfairly discriminated against same-sex couples in particular. Instead the question was whether excluding unmarried partners in a committed relationship from the same rights afforded to married people was constitutionally justifiable.

The court said that there was no legitimate reason to treat unmarried couples in a committed permanent life partnership differently from married couples.

“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 the parties in a relationship, which they view as a permanent, lifelong committed relationship also wanting to procreate and establish a family with children,” said Van Veenendaal.

She said the main concern often raised about recognising permanent life partnerships was that the couple did not formally announce their intention to remain together. This, however, was not a real problem because married couples often get divorced too. While the rights of children born to married couples are protected by the court process, children born to unmarried parents are not given that same protection.

“The Act still requires a marriage in order to establish a family and does not provide for families that do not fit this mold,” Van Veenendaal said.

She found that by prioritising marriage, the Act unfairly discriminated against children born out of wedlock and violated the rights of unmarried couples and their children.

The court ordered that the section in question of the Children’s Act dealing with artificial insemination must now include the words “or permanent life partner” whenever it refers to a “spouse”. This would ensure that the unmarried parents who have children through artificial insemination both be recognised as the legal parents in the same way as married couples.