J and Another v Director General, Department of Home Affairs, and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Madala J, Mokgoro J, Moseneke J, O'Regan J and Yacoob J
• Judgment Date: 28 March 2003
• Docket Number: CCT 46/2002
• Hearing Date: 27 February 2003
• Counsel: A M Stewart for the applicants. T G Madonsela for the respondents. A A Gabriel as curatrix ad litem for the children.
• Court: Constitutional Court

Goldstone J:

Introduction C

[1] The Children's Status Act of 1987 [1] (the Status Act) deals with, amongst other matters, the status of children conceived by artificial insemination. The challenged provisions apply to children so conceived within the context of a heterosexual marriage. D

[2] Since 1995, the two applicants have been partners in a same-sex life partnership. In August 2001 the second applicant gave birth to twins, a girl and a boy. They were conceived by artificial insemination. The male sperm was obtained from an anonymous donor. The female ova were obtained from the first applicant. In order to protect the identity of the twins, the applicants have been referred to in E these proceedings only as 'J' and 'B'.

[3] It is the wish of both applicants that they be registered and recognised as the parents of the twins. There was no legal impediment with regard to the second applicant, as the F 'birth-mother', being registered as the mother of the children under the regulations made in terms of s 32 of the Births and Deaths Registration Act of 1992 [2] (the regulations). However, the regulations and the forms annexed to them make provision for the registration only of one male and one female parent.

[4] When the first applicant was unsuccessful in her attempt to be registered as a parent of the children, the applicants approached G the Durban High Court for appropriate constitutional relief. They sought an order requiring the first respondent (the Director General in the Department of Home Affairs) to issue to both of the applicants birth certificates in respect of each of the children and to register their births reflecting the second applicant as their mother and the first applicant as their parent. They also sought an order H requiring the second respondent to amend the form annexed to the regulations to allow for the recordal of a person in the position of the first applicant as the parent of the child, ie where such person is the donor of a gamete used in the conception of the child. I

[5] The applicants also sought to have s 5 of the Status Act declared J

Goldstone J

constitutionally invalid on the grounds that it was inconsistent with rights entrenched in the Bill of Rights. Section 5 A reads as follows:

'(1)(a) Whenever the gamete or gametes of any person other than a married woman or her husband have been used with the consent of both that woman and her husband for the artificial insemination of that woman, any child born of that woman as a result of such artificial insemination shall for all purposes be deemed to be the B legitimate child of that woman and her husband as if the gamete or gametes of that woman or her husband were used for such artificial insemination.

(b) For the purposes of para (a) it shall be presumed, until the contrary is proved, that both the married woman and her husband have granted the relevant consent.

(2) No right, duty or obligation shall arise between any child born as a result of the artificial insemination of a C woman and any person whose gamete or gametes have been used for such artificial insemination and the blood relations of that person, except where -

(a)

that person is the woman who gave birth to that child; or

(b)

that person is the husband of such a woman at the time of such artificial insemination. D

(3) For the purposes of this section -

"artificial insemination", in relation to a woman -

(a)

means the introduction by other than natural means of a male gamete or gametes into the internal reproductive organs of that woman; or

(b)

means the placing of the product of a union of a male and a female gamete or gametes which have been brought together outside the human body in the womb of that woman, E

for the purpose of human reproduction;

"gamete" means either of the two generative cells essential for human reproduction.'

[6] At the request of the applicants, the High Court appointed Advocate A A Gabriel as the curatrix ad litem to F represent the interests of the children. She prepared a full and helpful report for the High Court. This Court also had the benefit of that report. We are additionally grateful to Advocate Gabriel for the oral submissions she made in this Court.

[7] The High Court made the following order: [3]

'1.

That the first respondent is ordered to:

(a)

issue to the applicants a birth certificate for G each of the minor children . . .; and

(b)

register the birth of each of the said minor children in the population register reflecting:

(i)

the second applicant as their mother; H

(ii)

the first applicant as their parent;

(iii)

their surname as being the surname of the second applicant.

2.

That the second respondent is ordered to cause annexure 1A of the Regulations in terms of s 32 of the Births and Deaths I Registration Act 51 of 1992 to be amended so as to allow for the recordal of a non-anonymous donor of a gamete used in artificial insemination as contemplated in s 5 of the Children's Status Act 82 of 1987

Goldstone J

from which a child is born, as a parent of that child. A

3.

That it is declared that for all relevant purposes the first applicant is a natural parent and guardian of the aforesaid minor children.

4.

That in s 5 of the Children's Status Act 82 of 1987 the word "married" be struck out wherever it appears as being constitutionally invalid and that the section be read as including the words "or permanent same-sex life partner" after the word B "husband" wherever it appears, save that the relief in this paragraph is suspended pending confirmation thereof by the Constitutional Court.

5.

That the respondents, jointly and severally, pay the costs of the application.

6.

That the rule nisi in the first order prayed be confirmed.' C

[8] The applicants have approached this Court for confirmation of the order relating to s 5 of the Status Act. This application is made under the provisions of s 172(2)(a) of the Constitution which, insofar as now relevant, provides that: D

'The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament . . . but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.'

The relief granted in para 2 of the order of Magid J ordering the second respondent to cause annexure 1A of the regulations to be E amended is not an issue before us. The extent to which the relief granted in respect of the regulations is appropriate in the light of the relief granted in terms of s 5 is also not an issue in this appeal. Those issues were not raised in argument in this Court, and I express no opinion on their constitutionality or appropriateness. F

The judgment of the High Court

[9] In the High Court, Magid J held that the provisions of s 5 of the Status Act constitute discrimination on the ground of marital status 'and probably sexual orientation'. As far as the children are concerned, the learned Judge held that the statutory provision amounts to discrimination on the listed grounds of social origin and birth. He G went on to hold that the presumption of unfair discrimination created by s 9(5) of the Constitution [4] applies. Because the government did not seek to justify the discrimination under s 36 of the Constitution, [5] Magid J held the section to be constitutionally invalid. H

Goldstone J

[10] With regard to appropriate relief, Magid J found this to be a proper case for both striking out and reading in to cure the A unconstitutionality of s 5. He struck out the word 'married' where it appears in ss (1)(a) and (b). And he read in the words 'or permanent same-sex life partner' after the word 'husband' where it appears in ss (1)(a) and (b) and (2)(b) of s 5. Treated in this way, ss (1) and (2) of s 5 read as follows: B

'(1)(a) Whenever the gamete or gametes of any person other than a married woman or her husband or permanent same-sex life partner have been used with the consent of both that woman and her husband or permanent same-sex life partner for the artificial insemination of that woman, any child born of that woman as a result of such artificial insemination shall for all purposes be deemed to be the legitimate child of that woman and her husband C or permanent same-sex life partner as if the gamete or gametes of that woman or her husband or permanent same-sex life partner were used for such artificial insemination.

(b) For the purposes of para (a) it shall...