The Constitutional Court has declared Section 40 of the Children’s Act unconstitutional and invalid as it discriminates against couples of the same-sex in respect to parental rights.A lesbian couple had asked the apex court to change the provision in the legislation as it only allowed one person in a same-sex relationship to legally be the mother of a child.
They also argued that Section 40 violated the dignity of others in their position and were not in the best interests of a child. “It’s argument is that the inclusion of the words permanent life partner as a long term measure would not properly cure the defects identified as the term is open to varying interpretations and could lead to uncertainty which would in in turn undermine the best interests of the child.”The ConCourt in a unanimous judgment, therefore, upheld the Pretoria High Court’s 2022 ruling.
“It is biologically impossible for two females to reproduce casually. They are entirely reliant on the artificial fertilisation process and, by implication, Section 40 of the Children’s Act to realise their dream of becoming parents to their biological children. “The provisions are not consistent with the best interests of the child and limits their fundamental rights.”Kollapen, therefore, declared Section 40 of the Children’s Act as unconstitutional and ordered the declaration of the constitutional invalidity of he law to take effect from 1 July.
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