The Centre for Child Law (CCL) has welcomed a declaratory order recently made by the Constitutional Court relating to children born to unmarried parents and conceived through artificial fertilisation, saying it gives legal clarity regarding the acquisition of parental responsibilities and rights (PRR).
The Constitutional Court held that section 40 of the Children’s Act 38 of 2005 was unjustifiably discriminatory on the bases of marital status and sexual orientation.
This after a female same-sex couple who had undergone an in vitro fertilisation (IVF) process, and from which twins were born, were not afforded equal parenting rights under the Children’s Act.
The order stated that the words “or life partner” be read in after “spouse” and “husband” in section 40 of the Children’s Act.
“The decision provides legal clarity regarding the acquisition of PRR concerning children born to unmarried parents and conceived through artificial fertilisation.
“Clear determination of parenthood has a major impact on the exercise of custody, maintenance, and guardianship of a child and further ensures that children born to married and unmarried parents are afforded equal legal recognition and protection, as per the right of every child to parental care and family without distinction regarding the sexual orientation or marital status of parents.”
As iterated in the judgment, the most important factor to be considered in matters concerning custody and access are that the rights of the child are of paramount importance.
“The CCL welcomes the Constitutional Court’s recognition of the best interests of all children and views this judgment as a crucial step towards making children’s rights a reality,” said the CCL.
According to the impugned provisions, the minor children are regarded as the children of the second applicant – the woman who was impregnated.
“Only she has established rights, responsibilities, duties and obligations towards the children.”
The recognition of the rights and responsibilities of the second applicant towards the children is premised on the fact that she gave birth to them.
The first applicant is vested with no such rights and responsibilities, despite the fact that she and the second applicant are permanent life partners and that they jointly took and executed the decision to have children.
The judgment read: “Traditional notions of family and parenthood have undergone revolutionary change under our constitutional dispensation.
“This can be attributed to a number of factors: the strong commitment to inclusivity and equality our Constitution evinces; the celebration of diversity as a source of richness rather than of division; and the recognition that for individual autonomy to flourish it must be enabled to be expressed in its fullest form.
“If, pre-constitutionally, South Africa was characterised by an obsession with difference and exclusion, then the post-democracy era must represent a triumph for inclusion and diversity.”
Cape Times