Section 40(3) of the Children’s Act states: 

“Subject to section 296, no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when –

(a) that person is the woman who gave birth to that child; or
(b) that person was the husband of such woman at the time of such artificial fertilisation.”

A lesbian couple approached the High Court of Pretoria and sought an order that Section 40 of the Children’s Act be declared unconstitutional. They want to start a family by way of artificial fertilisation, where one of the woman’s gametes and that of the donor would be implanted into the other partner. With section 40 of the Children’s Act, the problem staring both these women in the face is that only one of them can legally be the unborn child’s mother. The couple requested that section 40 be altered to read as follows:

"1 (a) Whenever the gamete or gametes of any person other than a married person or his or her spouse or permanent life partners have been used with the consent of both such spouses or both such permanent life partners for the artificial fertilisation of one spouse or one permanent life partner, any child born of that spouse or permanent life partner as a result of such artificial fertilisation must for all purposes be regarded to be the child of spouses or permanent life partners. 

(b) For the purpose of paragraph (a) it must be presumed, until the contrary is proved, that both spouses or permanent life partners have granted the relevant consent. 

2 Subject to section 296, whenever the gamete or gametes of any person have been used for the artificial fertilisation of a woman, any child born of that woman as a result of such artificial fertilisation must for all purposes be regarded to be the child of that woman. Page 4 of 17 

3 Subject to section 296, no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when — 

(a) that person is the woman who gave birth to that child; or 
(b) that person was the husband or permanent life partner of such woman at the time of such artificial
fertilisation.”

The Court states in the judgment that: “As a consequence of the definition of “parent” in section 1 of the Act, even though applicant 1 may be a gamete donor herself, she will be excluded from being a parent to any children to be carried by the second respondent, although she will be a parent in the sense of caring for the children and carrying responsibilities for the children’s upbringing. 

The applicant submits that in a female same-sex relationship, it is biologically impossible for the gametes from both spouses to be used, as there must also be male sperm involved for fertilisation to occur. The applicant submits that the legislature did not intend to extend parental rights to the non-genetic partner of the biological mother, in spite of the word “spouse” being used.”

The question here is whether the Children’s Act is unconstitutional in these circumstances. The High Court of Pretoria declared Section 40 of the Children’s Act unconstitutional in that it did not make reference to ‘permanent life partner’. This still has to be confirmed by the Constitutional Court.


Reference List:
V[....] and Another v Minister of Social Development and Another (27706/2021) [2022] ZAGPPHC 114 (22 February 2022)

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