children born to same-sex partners legitimate

By SAPA

March 29, 2003: The Constitutional Court ruled yesterday that twins born to a lesbian couple by means of artificial insemination were legitimate, a term traditionally used for children born in wedlock.

The court ruled that Section 5 of the Children's Status Act 1987 was unconstitutional in that it did not recognise permanent same-sex partners as legitimate parents, and should be amended. Under the Children's Status Act, a heterosexual married couple are the legitimate parents of a child born to them by artificial insemination with donated sperm or a donated ovum. The Act does not recognise permanent same-sex partners who become parents by the same means.

In this case, the sperm was from an anonymous donor, and the ova were from the first applicant, identified only as "J". J's fertilised ova were implanted into the second applicant, "B". When B gave birth to a twin boy and girl in August 2001, both J and B applied to be to be registered parents as the children's parents. The Department of Home Affairs would only allow B to be registered as a parent.

The couple applied to the Durban High Court for the department's refusal to be overridden, and were successful. Since the case involved the constitutionality of part of a law, it had to be confirmed by the Constitutional Court.

In confirming the essence of the Durban court's judgement, the Constitutional Court did not extend legitimacy to children of unmarried heterosexual partners. The court's ruling comes into force immediately. The state did not oppose the application, but wanted the coming into force of the judgement to be delayed for a year for Parliament to amend the law.