VJV and another v Minister of Social Development and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Zondo CJ, Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J
• Judgment Date: 29 June 2023
• Citation: 2023 JDR 2328 (CC)
• Hearing Date: 08 November 2022
• Docket Number: CCT 94/22
• Court: Constitutional Court

Kollapen J (Zondo CJ, Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring):

Introduction

[1]

Traditional notions of family and parenthood have undergone revolutionary change under our constitutional dispensation. This can be attributed to a number of factors: the strong commitment to inclusivity and equality our Constitution evinces; the celebration of diversity as a source of richness rather than of division; and the

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Kollapen J (Zondo CJ, Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring)

recognition that for individual autonomy to flourish it must be enabled to be expressed in its fullest form.

[2]

If, pre-constitutionally, South Africa was characterised by an obsession with difference and exclusion, then the post-democracy era must represent a triumph for inclusion and diversity. This case is about whether the impugned provisions of section 40 of the Children’s Act [1] (impugned provisions) are consistent with the Constitution.

[3]

This is an application for confirmation of an order of the High Court of South Africa, Gauteng Division, Pretoria (High Court), which declared section 40 of the Children’s Act unconstitutional to the extent that it excludes permanent life partners. It held that section 40 of the Children’s Act, which provides for the acquisition of parental rights by married persons in respect of children born as a result of artificial fertilisation, unfairly discriminates against permanent life partners on the basis of marital status.

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Kollapen J (Zondo CJ, Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring)

Parties

[4]

The first and second applicants are women in a permanent life partnership. The first and second respondents are the Minister of Social Development and the Minister of Justice and Constitutional Development, respectively. The respondents did not oppose the application in the High Court and abide the decision of this Court. The Centre for Child Law (CCL) participated in the High Court proceedings as amicus curiae and was admitted in that capacity in this Court.

Background

[5]

For a long time, the applicants held a desire to have their own children and their own family. To this end, they were able to utilise the medical advances made in the in vitro fertilisation (IVF) process. The first applicant’s gamete and the gamete of a donor were fertilised during an IVF process. [2] The embryos were then transferred into the uterus of the second applicant resulting in her pregnancy. Consequently, twins were born to the applicants.

[6]

According to the impugned provisions, the minor children are regarded as the children of the second applicant. Only she has established rights, responsibilities, duties, and obligations towards the children. The recognition of the rights and responsibilities of the second applicant towards the children is premised on the fact that she gave birth to them. [3] The first applicant is vested with no such rights and responsibilities, despite the fact that she and the second applicant are permanent life partners and that they jointly took and executed the decision to have children. Moreover, the first applicant’s gamete was fertilised by the donated male gamete in the IVF process. The problem, says the applicants, is that the impugned provisions only recognise parties in a marriage as the parents of a child born through artificial

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Kollapen J (Zondo CJ, Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring)

fertilisation but do not accord the same rights to parties in a relationship other than marriage, even those in their position who are in a permanent life partnership.

High Court judgment

[7]

The applicants brought an application in the High Court and sought relief to declare section 40 of the Children’s Act unconstitutional and to seek the reading-in of the words “or permanent life partner” after the words “spouse” or “husband” wherever such words appear in the impugned provisions.

[8]

They also initially sought the amendment of the definition of “parent” as it appears in the Children’s Act, but this relief was abandoned during the course of their argument before the High Court.

[9]

The applicants argued that it is biologically impossible for the gametes from both female spouses to be used in the artificial fertilisation process, as male sperm is required for fertilisation to occur. Consequently, same-sex female couples are disproportionately discriminated against by the impugned provisions regulating artificial fertilisation processes. Parental rights are not automatically assigned to same-sex female couples, [4] and they are required to approach a High Court prior to the birth of the child to ensure that both parents are holders of parental rights and are recorded as such by the Department of Home Affairs when their baby is born. [5]

[10]

They argued that the impugned provisions discriminate on the grounds of marital status and sexual orientation and that this discrimination is unjustifiable.

[11]

The CCL supported the contention that the impugned provisions are unconstitutional. However, the CCL disputed that they unfairly discriminated against

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Kollapen J (Zondo CJ, Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring)

the applicants on the basis of sexual orientation. They were also of the view that while the remedy proposed by the applicants would broadly address the mischief in the Act, it may create uncertainty in respect of who may be termed a permanent life partner.

[12]

The CCL advanced the following arguments:

(a)

Section 40(1)(a) introduces a legal fiction that a child born using the gamete of any person other than those of a married person for the purpose of artificial fertilisation is regarded as the child of those spouses. [6] This is analogous to the situation of both adoption and surrogacy.

(b)

Section 40(1)(a) applies to married persons only, which includes civil unions. The exclusion of unmarried persons from the ambit of the section applies in respect of both heterosexual and same-sex relationships. The position of unmarried persons falls under the provisions of section 40(2) of the Children’s Act.

(c)

The mischief in this matter is not that the provisions unfairly discriminate on the basis of sexual orientation, but rather that the exclusion of unmarried people in a committed relationship is constitutionally unjustifiable.

(d)

The remedy proposed by the applicants to have the undefined term “permanent life partner” read into the Children’s Act will create a breeding ground for disputes as to when a person can be deemed a permanent life partner. This remedy will probably not cure all the deficiencies identified by the applicants, as it is a term still open to interpretation.

[13]

The High Court noted that the lack of parental recognition of the first applicant by the Children’s Act arises from two issues. First, the Children’s Act does not define the word “spouse” in terms of the context of surrogacy and, second, the definition of

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Kollapen J (Zondo CJ, Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring)

“parent” excludes the first applicant as the gamete donor. [7] The High Court held that the impugned provisions have the effect of automatically affording parental rights and responsibilities to the second applicant but not to the first applicant. This, said the High Court, will leave the first applicant in a legally insecure position resulting in a myriad of unfair consequences. [8]

[14]

The High Court held that the difference between unmarried and married people is that, through litigation and the extension of the law, the parties and the children involved in legally regulated relationships are protected. [9] It held that the Children’s Act requires a marriage in order to establish a family and does not provide for families that do not fit this mould. [10]

[15]

The High Court held that the impugned provisions unfairly discriminate on the basis of marital status and also violate the rights to equality and dignity of unmarried people who have had children by way of artificial fertilisation. The Court said that this violation extends to the rights of children born in such circumstances by violating the child’s right to family and parental care. All of this, said the Court, was in violation of section 28 of the Constitution which required the best interests of the child to be considered in every matter concerning the child. [11] The High Court held, however, that

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Kollapen J (Zondo CJ, Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring)

the discrimination occasioned by the impugned provisions did not do so on the basis of sexual orientation as the term spouse includes partners in a civil union. [12]

[16]

The High Court declared the impugned provisions unconstitutional and made the following order:

“(1)

That section 40 of the Children’s Act, 38 of 2005 (the Children’s Act) is declared to be inconsistent with the Constitution of the Republic of South Africa to the extent that the section does not include the words:

‘or permanent life partner’ after the word ‘spouse’ and ‘husband’ wherever such words appear in section 40;

‘or permanent life partners’ after the word ‘spouses’ wherever such word appears in section 40.

(2)

That, in section 40 of the Children’s Act, the words:

2.1

‘or permanent life partner’ are read in after the word ‘spouse’ and ‘husband’...