Section 40 of the Children’s Act, 38 of 2005 (the Act) does not afford parental and other rights to both unmarried parties in permanent life-long partnerships.  

According to the Act, when a married couple has a child through artificial insemination, both partners are automatically recognised as the legal parents of their child. This applies even in cases when only one spouse donated a gamete to conceive the child, such as their sperm or an ovum.

When an unmarried couple, or a couple in a permanent life partnership, have a child through artificial insemination, only the person who donated the sperm or ovum will be recognised as the legal parent. Their partner will only be recognised if they submit a formal application to a high court.

The section does not provide for 1. the reality of unmarried couples who want to undergo artificial fertilisation; 2. the terminology as to when it would apply to unmarried couples; 3. a formulation to avoid denial of acquisition of parental responsibilities and rights; 4. what would be required for a valid process of artificial fertilisation to be embarked upon by an unmarried couple, particularly when both parties agree that they have established a permanent life partnership.

An unmarried lesbian couple instituted proceedings in the High Court, against the Minister of Social Development, to declare these provisions of the Act unconstitutional. The Minister did not oppose the case.

They cited examples such as any children they have would not have a right to inherit from their estate if they died without a will. This also violated the rights of children and their parents to a family life because one parent would not have a legal right to participate in important decisions affecting their children, such as their removal from the country by the other partner and a right of access to the children should the couple decide to separate, or the other partner dies.

In a ruling on 24 February 2022, Acting Judge Carla van Veenendaal, declared Section40 unconstitutional and must be referred to the parliament for reconsideration. As a temporary solution to the plight of the applicants, the court inserted words into section 40 of the Act to remain in effect until the Act is amended.

The court held that:

• there was no legitimate reason to treat unmarried couples in a committed permanent life partnership differently from married couples.

• both partners in a permanent relationship that conceives a child through artificial insemination should have parental rights.
• both people in the partnership should be recognised as the legal parents of the child.
• Section 40 of the Act unfairly discriminated against children born out of wedlock and violated the rights of unmarried couples and their children.
• Section 40 must now include the words “or permanent life partner” whenever it refers to a “spouse”.

This would ensure that the unmarried parents who have children through artificial insemination both be recognised as the legal parents in the same way as married couples.