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

• Jurisdiction: South Africa
• Citation: 2003 (5) SA 621 (CC)

J and Another v Director General, Department of Home Affairs, and Others
2003 (5) SA 621 (CC)

2003 (5) SA p621

Citation	2003 (5) SA 621 (CC)
Case No	CCT 46/2002
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Madala J, Mokgoro J, Moseneke J, O'Regan J and Yacoob J
Heard	February 27, 2003
Judgment	March 28, 2003
Counsel	A M Stewart for the applicants.; T G Madonsela for the respondents.; A A Gabriel as curatrix ad litem for the children.

Flynote : Sleutelwoorde G

Constitutional law — Human rights — Right not to be discriminated against on grounds of sexual orientation — Persons H living together in same-sex life I partnership — Section 5 of Children's Status Act 82 of 1987 dealing with status of children conceived by artificial insemination within context of a heterosexual marriage discriminating between married persons and J

2003 (5) SA p622

permanent same-sex partners in not permitting partner of same-sex life partnership who did not give birth A to child to become legitimate parent of child — Section discriminating unfairly between married persons and permanent same-sex life partners — Section inconsistent with s 9(3) of Constitution of the Republic of South Africa Act 108 of 1996 — Section 5 not justifiable in terms of s 36 of Constitution — Court striking out word 'married' in s 5 and reading in words 'or permanent same-sex life partner' after word 'husband' in section and also striking out words 'as if the gamete or gametes of that woman or her husband were used for such artificial insemination' in s 5(1)(a). B

Headnote : Kopnota

The provisions of s 5 of the Children's Status Act 82 of 1987 (which deals with the status of children conceived by artificial insemination within the context of a heterosexual marriage) does not permit the partner of a permanent same-sex life partnership who did not give birth to a child, conceived by artificial insemination, to become a legitimate parent of the child. The section discriminates unfairly between married persons and permanent same-sex life partners and is C accordingly inconsistent with s 9(3) of the Constitution of the Republic of South Africa Act 108 of 1996, which prohibits the State from discriminating directly or indirectly against anyone on the ground D of sexual orientation. Section 5 of Act 82 of 1987 cannot be justified in terms of s 36 of the Constitution. (Paragraphs [13] and [15] at 627A/B - B/C and E/F.)

The Court accordingly confirmed the decision of a Local Division that s 5 of Act 82 of 1987 was unconstitutional and issued an order that (i) s 5 of Act 82 of 1987 was declared to be inconsistent with the E Constitution to the extent that the word 'married' appeared in that section and to the extent that the section did not include the words 'or permanent same-sex life partner' after the word 'husband' wherever it appeared in that section; (ii) in s 5 of Act 82 of 1987 the word 'married' was struck out wherever it appeared in that section; (iii) in s 5 of Act 82 of 1987 the words 'or permanent same-sex life partner' were read in after the word 'husband' wherever it appeared in that section; and (iv) the words in F s 5(1)(a) 'as if the gamete or gametes of that woman or her husband were used for such artificial insemination' were struck out. (Paragraph [28] at 632E/F - H.)

Cases Considered

Annotations

Reported cases

Du Toit and Another v Minister of Welfare and Population Development and Others 2003 (2) SA 198 (CC) (2002 G (10) BCLR 1006): compared and applied

J and Another v Director General, Department of Home Affairs, and Others 2003 (5) SA 605 (D): confirmed but order varied

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39): dicta in paras [62] - [76] and [87] H applied

Peter v Minister of Law and Order 1990 (4) SA 6 (E): dictum at 9G - H applied

Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) (2002 (9) BCLR 986): dictum in para [87] applied.

Statutes Considered

Statutes I

The Children's Status Act 82 of 1987, s 5: see Juta's Statutes of South Africa 2002 vol 5 at 2-133 - 2-134

The Constitution of the Republic of South Africa Act 108 of 1996, ss 9(3), 36: see Juta's Statutes of South Africa 2002 vol 5 at 1-146, 1-149.

Case Information

Application for the confirmation of an order of statutory invalidity J

2003 (5) SA p623

made in the Durban and Coast Local Divison (Magid J), reported at 2003 (5) SA 605. The facts appear from the judgment of A Goldstone J.

A M Stewart for the applicants.

T G Madonsela for the respondents.

A A Gabriel as curatrix ad litem for the children. B

Cur adv vult.

Postea (March 28).

Judgment

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

2003 (5) SA p624

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...