Last week it was reported that the Pretoria High Court has  declared a part of the Children's Act, which regulates the parental rights of couples who conceive children through artificial insemination, unconstitutional.

According to GroundUp, the  judgment is ground-breaking 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.

The applicants, a same sex couple, approached the Court on the basis that the Children's Act discriminates against same-sex couples. Their argument stated that when one of them conceives a minor child, the minor child will not be regarded as the minor child of the other partner (not carrying the child). However, this is also the case for heterosexual unmarried couples. (The Centre for Child Law, Pretoria was added as amicus curiae in the proceedings.)

The main concern was that unmarried parties (same-sex couples, couples in permanent life partnerships) were discriminated against since the one party will not automatically retain rights and responsibilities of a minor child. They will be required to approach the court for such an order.

There was consensus that Section 40 of the Children's Act did not provide for:

  1. Unmarried couples wanting to undergo artificial fertilisation;
  2. Terminology as to when it would apply to unmarried couples;
  3. Formulation to avoid denial of acquisition of parental responsibilities and rights;
  4. The requirements for a valid process of artificial fertilisation to be embarked upon by an unmarried couple when both regard their relationship as permanent.

Ultimately, the Court made a declaratory order that Section 40 of the Children's Act must be amended to include the phrase "permanent life partner" and "spouse" when rights and responsibilities are awarded after birth.

While the amendment order is to be celebrated, crucially the revision would have to address a potential hazard as we foresee that disputes may arise in future when the term "permanent life partner" is concerned. When the parties do not agree on whether or not they are in a permanent life partnership, it may lead to disputes and litigation.

Additionally, Barnard Inc supports the amendment in that it does not provide for rights and responsibilities to be awarded to a man (automatically) who is the "father" of a child born from a one-night stand, seeing as this often leads to many disputes.

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