Lesbian couple want recognition in law that both partners are mothers

THE Constitutional Court this week faced yet another application regarding the vital issue of modern families wanting to keep up with the times. A lesbian couple, faced with the problem that only one of them can legally be the mother of their child, asked the apex court to change the law.

The applicants are permanent life partners who want to start a family. They decided to have a baby by in vitro fertilisation and have earmarked three embryos that are ready to be transferred.

These were brought into being by using the first applicant’s gamete and that of a donor. The plan is to transfer the gametes to the uterus of the second applicant. This is to ensure that both women are biologically connected to the child.

But the legal problem facing them is that the first mother, although her gamete is used, will not be recognised in law as the legal parent of the child.

This is because Section 40 of the Children’s Act, dealing with the rights of the child conceived by way of artificial fertilisation, only allows for a citation 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 who are in a committed relationship conceive a child by using the fertilised gamete of one woman implanted in the other.

The legal question before the Concourt was whether the Children’s Act in this regard was unconstitutional. Neither the Ministry of Social Development nor the Ministry of Justice opposed the application. The Centre for Child Law, which entered the fray as a friend of the court, supported the application.

The Gauteng High Court, Pretoria, earlier this year paved the way for lesbian couples to be recognised as equal parents of a child conceived through artificial insemination.

It declared that Section 40 of the Children’s 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”.

While this was the first step towards victory for these mothers, the Concourt still had the final word on the issue.

Both applicants from the start told the court that they dreamt of having their own children and chose artificial insemination as the route to go. They decided to challenge the “outdated” law in this regard as legally, up to now, only the woman carrying the child was regarded as the mother.

They pointed out that in a female same-sex relationship, it was biologically impossible for the gametes from both spouses to be used as there must also be male sperm involved for fertilisation to occur.

They submitted that while things had evolved regarding same-sex partnerships, the legislature did not keep up with this. It was argued that as a consequence, there was discrimination against same-sex female couples because parental responsibilities and rights were not automatically assigned to them in terms of the legislation, thus there was no legal certainty regarding the non-carrying partner’s rights and responsibilities towards the child.

Acting Judge Carla van Veenendaal earlier said great strides had been made in the past with the acknowledgement of gay and lesbian rights in terms of recognition and formalisation of unions, civil unions and marriages.

However, the Children’s Act remained conservatively lagging in terms of artificial fertilisation and the subsequent recognition of partners as parents.

The Concourt, meanwhile, reserved judgment on whether it would order Parliament to change the law in this regard.