Lesbian couples now equal parents of a child conceived through artificial insemination

The practical effect of amending Section 40 of the Children’s Act will legally regard a child born from artificial fertilisation (AI) as the child of both life partners.

The Gauteng High Court in Pretoria recently declared Section 40 of the Children’s Act as inconsistent with the Constitution since it does not include the words “permanent life partner” after the words “spouse” and “husband”.

Previously the law automatically regarded the husband of a mother who was artificially inseminated as the father of the child, but it did not legally recognise the lesbian partner of a woman who is carrying the child.

Two women in a lesbian same-sex permanent life partnership who plan to have their own children by means of artificial insemination, approached the court to challenge the mentioned law. They submitted that while things have evolved regarding same-sex partnerships, the legislature did not keep up with this.

They pointed out that in a female same-sex relationship, it is medically impossible to use gametes from both spouses since fertilisation requires male sperm.

As a result, it was asserted, there was discrimination against same-sex female couples because parental obligations and rights are not automatically given to them under the law, leaving no legal clarity regarding the non-carrying partner’s rights and responsibilities towards the kid.

Acting Judge C van Veenendaal stated that enormous advances had been achieved in the past in the acceptance of homosexual and lesbian rights, including the recognition and formalisation of civil union and marriage.

The Children’s Act, on the other hand, is conservatively trailing in terms of artificial insemination and the consequent recognition of partners as parents.

She stated that it was true that some parties, for different reasons, decided not to marry or go through any type of legal process. In addition to wanting to reproduce and have a family with children, and ultimately wanting to be grandparents and great-grandparents, this does not detract from the parties’ desire to be in a relationship that they regard as a permanent, permanently committed commitment, the judge said.

When it comes to all cultures, the judge pointed out that one of the most important basic institutions is that of the family. She determined that having legal certainty is in the best interests of both the kid and the lifelong same-sex partners who have children.

According to her, the right to family and parental care is breached when children are born through artificial insemination and to unmarried parents according to the current law.

As example, she mentioned that, in the event of a kid being injured at school, the school will only be required to contact the biological parent, and the second parent will have no influence in the care of the child.

The judge concluded that it was evident that this portion of the Children’s Act did not take into consideration the reality of unmarried couples who desired to undergo artificial fertilisation, and that it thus needed to be altered to reflect this.