Joburg woman delighted she 'won't have to adopt my own child' after key court ruling

A Johannesburg couple is delighted to have played an important role in changing the country's laws to give those in same-sex relationships full parental rights.

Being able to have full parental rights over their twin boys was a dream for the lesbian couple, but until just over a week ago, this simply wasn’t possible. However, thanks to their victorious court application, they have gone a long way towards making this happen.

The one woman’s eggs were used in the fertilisation process, but because she did not carry the children herself, she was not identified as the biological mother. Under section 40 of the Children’s Act, only the parent who bears the children is recognised as the child’s legal parent. The other partner, whether their eggs were used in the fertilisation process or not, would have to adopt the child or children.

The couple, who spoke to TimesLIVE but cannot be identified to protect the children, had gone to the high court in Pretoria asking that the law be changed. They argued that it was inconsistent with the constitution as the words “life partner” did not follow the words “spouse” and husband” in the act — effectively leaving them out in the cold.

The ruling is a victory for lesbian couples who want to have children — and the couple at the forefront of making it happen is delighted.

“For me, knowing that I am in the position to make life better for every gay and lesbian, brings a sense of purpose. I am ecstatic,” said the 44-year-old mother who before the ruling did not have legal rights to the twins.

Having her own child was “a lifelong dream”, she said. 

“I was told that there was going to be a 5% chance my eggs would work because I am old. [But] this is what I wanted to do. I wanted to have my own biological children,” she said.

“For me this [ruling] is a great achievement. Knowing I am lesbian, there was never a time in my life I would fall pregnant,” she said, adding that her partner, who carried the children, “gave us beautiful boys”.

The couple conceived their twins through in vitro fertilisation (IVF).

“We were fortunate the IVF worked the first time around. My old eggs worked. They [the lab] expected 22 eggs and only four survived. We used two and froze the other two,” she said.

The couple met at work in 2016. They started out as friends and later dated. They got engaged in 2019.

“Prior to being engaged, we discussed having kids. We were on the same page when it came to having children,” said the woman who carried the twins.

She said her partner, who donated the eggs, “was of the opinion that she was never going to carry her own children”.

“I’ve had a child, so I said I would carry the children later on. It’s her genetic material that we used and I carried the children. According to section 40 of the Children’s Act, because I gave birth to the child, I would be registered as the biological mother and [she] would have to adopt her own biological children,” she said.

The couple said they were not aware of this piece of legislation until they met their lawyers while going through the IVF process.

They said they were “very relieved to say the least” with the outcome of the case — “because it’s apparently a very difficult process to adopt your own child”.

“It was sad knowing that finally I will have my own children, but I won’t have the legal right to them,” said the woman who donated the eggs.

The couple are now proud parents of four-week-old twin boys who, despite keeping them awake at night, bring them endless joy.

“They both smile. We get joy from the little things they do. One is quiet while the other one has a very loud mouth. We can already see who the cheeky one is,” the woman said.

In a ruling on February 24, a month after they welcomed their twin boys, the high court found that the Children’s Act remained conservatively “lagging” in terms of artificial fertilisation and the recognition of partners as parents.

“Great strides have been made in the past with the acknowledgment of gay and lesbian rights in terms of recognition and formalisation of union, civil union and marriage and facilitation of recognition of relationships in terms of succession, estate planning and provision for what would normally have been viewed as spouses in [every] sense. However, the Children's Act remains conservatively lagging in terms of artificial fertilisation and the subsequent recognition of partners as parents.

“The physical, scientific side of fertilisation presents cut and dried facts, which is regulated in terms of the Health Care Act. However, the more murky side of recognising contributing partners, whether as a nurturing parent or as a contributing donor of gametes, while in a committed relationship, albeit without a ceremony that constitutes some form of union or a registered contract, still presents a problem.

“It is a fact that sometimes parties, for various reasons prefer not to get married or to have some form of formal process. This does not take away from parties in a relationship, which they view as a permanent, lifelong committed relationship also wanting to procreate and establish a family with children and eventually wanting to be grandparents and eventually great-grandparents, if they are granted long and healthy lives. Parties are then sharing parental responsibilities and want to pool their financial resources in order to create an estate which will establish a secure future,” the judgment read.

It added that section 40 of the Children's Act “unfairly discriminates on the basis of marital status in terms of its treatment of children born in or out of wedlock”.

“In respect of partners who have had children by way of artificial fertilisation, but relationship not recognised, their right to equality and dignity are violated in regard to the inroads to their right to family life. When children are born by artificial fertilisation and of unmarried parents, their right to family and/or parental care is violated, as set out by the first applicant. When a child is hurt at school, the school will only be obliged to call on the biological parent, while the second parent has no say over the treatment of the child.

“A child's right to have his best interests considered of paramount importance is violated. As pointed out by the first applicant, the child will have no rights regarding inheritance if something were to happen to her and she were to leave no will,” the judgment read.

The judgment adds that “it is clear” that section 40 of the act did not provide for:

• The reality of unmarried couples who want to undergo artificial fertilisation
• The terminology as to when it would apply to unmarried couples
• A formulation to avoid denial of acquisition of parental responsibilities and rights; and
• What would be required for a valid process of artificial fertilisation to be embarked upon by an unmarried couple — particularly as to when both partners have agreed that they have established a permanent life partnership.

“It is also clear that the right to dignity and equality of the children born of such artificial fertilisation is violated, as are the rights to dignity and equality of the parties to a lifelong permanent partnership.

“In regard to the above section 40 of the Children's Act must be declared unconstitutional and must be referred to the parliament for reconsideration.

“It is recommended that the definition of ‘parent’ must also be reconsidered in view of the changes in the society,” the judgment read.

Adele van der Walt, a specialist attorney in fertility, surrogacy and medical law who acted on behalf of the couple, said the judgment was important.

“The significance of the judgment is legal certainty for both parents to have equal rights and responsibilities, and legal certainty for any children born. The birth registration process is also challenged in this matter.

“Currently the birth certificate requires a 'mother' and 'father' to be named/filled out; this will change to 'parent 1' and 'parent 2' and provision made for a sperm donor where female same sex couples have children through fertility treatment,” she said.

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