29 June 2023 marked a milestone in South African constitutional law when the Constitutional Court issued a groundbreaking ruling that will significantly influence the lives of many same-sex couples.

Modern society witnesses constant evolution in the upbringing of minor children. This shift necessitates that everyone – from litigants, judges, and parents, to the general public – remain updated on statutory provisions that impact minor children and their families.

On this significant day, the Constitutional Court endorsed the High Court of Pretoria's decision concerning the unconstitutionality of Section 40 of the Children's Act. The judgement, arising from the case VJV and Another v Minister of Social Development and Another [2023] ZACC 21, declared that Section 40 unjustly discriminates based on sexual orientation and marital status. It found the Act's exclusion of the phrase "or permanent life partner" after "spouse" and "husband" to be unjustified.

The case was brought forth by two women in a permanent life partnership who sought to have a family with a biological connection to their child. Consequently, they initiated an IVF process. The First Applicant's gametes were fertilised with a donor's, and the embryos were then implanted in the Second Applicant's uterus. The procedure was successful, resulting in the birth of twins.

However, due to the restrictive language in Section 40 of the Children's Act, only the Second Applicant was recognised as the legal parent of the minor children, based solely on her having given birth to them. The First Applicant's contributions, including the use of her gametes and joint decision to have children with the Second Applicant, were disregarded. This led the Applicants to seek a declaration from the High Court that Section 40 of the Children's Act was unconstitutional.

The Applicants' main argument was that Section 40 only acknowledges married couples as legal parents in cases of artificial fertilisation, leaving unmarried couples unprotected. They illustrated an example where a committed couple of 20 years choosing not to marry would have only one partner recognised as a legal parent after undergoing IVF, while a couple married for only a month would both be acknowledged as parents following IVF.

When presented with the case, the Constitutional Court first evaluated whether Section 40 was discriminatory and whether this discrimination was justifiable. The Court concluded that Section 40 was indeed discriminatory and unjustifiably so, as it categorically prevented the automatic assignment of parental rights and responsibilities to unmarried parents.

In situations involving minor children, their best interests are always paramount. The Applicants contended that their children's best interests would not be served if the First Applicant were not recognised as a legal parent, as this would have far-reaching implications on matters such as maintenance.

The declaration of the section's invalidity took effect from 1 July 2007, when the Act was first enforced. However, the declaration's enforcement is suspended for 24 months to allow Parliament to address the constitutional deficiencies identified by the Court. Until then, a temporary amendment, or "reading-in", is provided to include "permanent life partner" within the provisions of Section 40.

Please note that this landmark judgement applies specifically to parental rights and responsibilities in cases of artificial insemination. It does not affect the parental rights and responsibilities of unmarried fathers, whose children were not conceived through artificial insemination. In such cases, the Children's Act's Section 21 provides guidelines on when an unmarried father will automatically be conferred with parental rights and responsibilities.

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