Procedural Posture
The first applicant was denied recognition as a parent to the children whom her partner had conceived by artificial insemination. The couple then filed a complaint before the Durban High Court to obtain constitutional relief, which allowed it. The applicants applied to the Constitutional Court for confirmation of the order issued by the High Court. The Department of Home Affairs had not appealed the High Court’s order and did not oppose referral to the Constitutional Court.
Facts
The two applicants, who were partners in a long-term same-sex relationship, had decided to have a child. In 2001, the second applicant gave birth to twins conceived by assisted reproductive technology. The male sperm was obtained from an anonymous donor, while the female ova were donated by the first applicant.
Both applicants wished to be registered and recognised as the parents of the children. No legal impediment obstructed the second applicant from being registered as the mother of the children. However, the relevant regulations and forms made provision for the registration only of one male and one female parent. When the first applicant failed in her attempt to be registered as a parent of the children, she and her partner sought relief through the courts.
Issue
Whether preventing the same-sex partner of a woman who gave birth to a child conceived by assisted reproductive technology from registering as a parent of that child was unconstitutional.
Domestic Law
Birth and Deaths Registration Act 1992.
Children’s Status Act 1987.
Constitution of South Africa, Sections 7 (affirmation of rights), 8 (application of constitutional rights), 9 (equality), 28 (children), and 36 (limitation of rights).
Du Toit v. Minister of Welfare and Population Development and Others, Constitutional Court of South Africa, 2002 (finding lack of provision for joint adoption by same-sex couple to be unconstitutional).
National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs, Constitutional Court of South Africa, 1999 (extending spousal immigration benefits to same-sex partners of South Africans).
Satchwell v. President of the Republic of South Africa and Another, Constitutional Court of South Africa, 2003 (extending spousal pension benefits to same-sex partner of civil servant).
Comparative Law
The Court cited the laws of several European countries recognising same-sex unions and marriage, including Belgium, Denmark, Germany, Iceland, the Netherlands, Norway and Sweden.
Reasoning of the Court
The applicants sought an order requiring the Department of Home Affairs (the first respondent) to register the second applicant as the mother and the first applicant as the parent of the children. They requested an order requiring the Minister of Home Affairs to amend the relevant forms and regulations to allow a person in the position of the first applicant to register as parent of a child. In addition, the applicants argued that Section 5 of the Children’s Status Act, relating to artificial insemination, should be declared constitutionally invalid because it was contrary to the rights set out in the Constitution.
In its decision, the High Court had held that Section 5 constituted discrimination on the ground of marital status “and probably sexual orientation”. With regard to the children involved, it had held that the provision amounted to discrimination on the ground of social origin and birth. The High Court had then found that the presumption of unfair discrimination set forth in Section 9(5) of the Constitution applied and, since the Government had not tried to justify the discrimination, the provision had to be considered invalid. The High Court had allowed all three of the applicants’ requests. It ordered their joint recognition as parents of the children, amendment of the relevant forms and regulations, and modification of the text of Section 5. With regard to Section 5, the High Court had ordered that the word “married” (referring to the woman undergoing artificial insemination) be struck down, and that the words “or permanent same-sex life partner” be read in after the word “husband” wherever it appeared.
The Constitutional Court agreed that Section 5 of the Children’s Status Act unfairly discriminated between married persons and permanent same-sex life partners. The provision was therefore inconsistent with the prohibition, in Section 9(3) of the Constitution, of discrimination on grounds of sexual orientation.
The Court had already held an analogous difference in treatment to be unconstitutional in the case of Du Toit. That case dealt with a provision precluding adoption by unmarried persons, thereby automatically excluding partners in a same-sex union. The Court had found that the applicants’ status was inextricably linked to their sexual orientation and that the provision was therefore unfairly discriminatory. The same reasoning applied to the applicants’ case.
The Court also considered whether the limitation of the applicants’ rights caused by the challenged provision was justifiable and found that it was not. The Court cited its own jurisprudence in Du Toit, where it had noted the unfair discrimination suffered by same-sex couples in the past and the need to end it.
Lastly, the Court affirmed the need for comprehensive legislation regularising relationships between same-sex partners. It asserted that it was not satisfactory for the courts to grant piecemeal relief to gay and lesbian individuals, nor was it appropriate for them to determine the details of the relationship between partners in a same-sex union. The legislature therefore had a duty to “deal comprehensively” with same-sex couples.
The Court confirmed the order issued by the High Court.
J and Another v. Director General, Department of Home Affairs and Others, Constitutional Court of South Africa (full text of judgment, PDF)
