The Constitutional Court has given Parliament 24 months to remedy Section 40 of the Children’s Act, which it found discriminates on the basis of marital status and sexual orientation.
It confirms an earlier High Court ruling which paved the way for lesbian couples to be recognised as equal parents of a child, conceived through artificial insemination.
It declares that Section 40 of the Act was inconsistent with the Constitution to the extent that it did not include the words “permanent life partner” after the words “spouse” and “husband”.
Section 40 of the Children’s Act, dealing with the rights of a child conceived by way of artificial fertilisation, only allows for a situation where a man and a woman, married or not, conceive a child by artificial insemination.
The law does not provide for a situation where two women in a committed relationship conceive a child by using the fertilised gamete of one woman implanted in the other.
The apex court found that traditional notions of family and parenthood have undergone revolutionary change.
Constitutional Court judge Justice Jody Kollapen says “This can be attributed to a number of factors, strong commitment to inclusivity and equality. The celebration of diversity is a source of richness rather than division. If pre-constitutionally SA was characterised by an obsession with difference and exclusion, the post democratic era must represent a triumph for inclusion and diversity.”
And confirmed an earlier High Court ruling on the matter.
“It is declared that the impugned provisions of the Children’s Act unfairly and unjustifiably discriminate. The declaration of constitutional invalidity takes effect from July 1 2007 but its operation is suspended for 24 months from the date of this order to afford parliament the opportunity to remedy the constitutional defects giving rise to constitutional invalidity.”
The Centre for Child Law has welcomed the ruling.
Livestream:
