Legal review urged for same-sex partners
March 31, 2003 Edition -1
By Estelle Ellis
A set of 2-year-old twins have created legal history in South Africa.
The twins, who live in Durban, will be registered as having two mothers after the Constitutional Court declared legislation that did not make provision for this to be unconstitutional.
The judges also called on parliament to formalise same-sex relationships in legislation. "Comprehensive legislation regularising relationships between gay and lesbian persons is necessary. It is unsatisfactory for the courts to grant piecemeal relief to members of the gay and lesbian community as and when aspects of their relationships are found to be prejudiced by unconstitutional legislation," said Mr Justice Richard Goldstone, who wrote the judgment.
The Children's Status Act deals with, among other matters, the legitimacy of children conceived by artificial insemination.
Up to Friday, it only made provision for a woman and her husband to be registered as the parents of these children.
Two women from Durban, J and B, successfully challenged these provisions. They have been in a same-sex partnership since 1995. In August 2001, B gave birth to twins, a girl and a boy. They were conceived by artificial insemination. The sperm was obtained from an anonymous donor, and the ova were obtained from J.
J and B wanted to be registered as the parents of the twins. The law recognised B as a legal parent because she was the birth mother, but did not recognise J as the other parent.
The couple then approached the Durban High Court to have the relevant part of the Children's Status Act declared unconstitutional.
They won their case in the Durban High Court. J and B then approached the Constitutional Court to have this order confirmed.
The Constitutional Court had to decide whether this order should be confirmed, and whether the order should be expanded to include unmarried heterosexual permanent life partners.
"The provisions of the Children's Status Act do not permit J to become a legitimate parent of the children. This unfairly discriminates between married persons and J and B as permanent, same-sex, life partners.
"The section is accordingly unconstitutional as the constitution prohibits discrimination on the ground of sexual orientation," Judge Goldstone said.
"It is unfairly discriminatory to deprive J of such recognition," he said.
"It is a matter of our history (and that of many countries) that these relationships have been the subject of unfair discrimination in the past. However, our constitution requires that unfairly discriminatory treatment of such relationships cease."
