Case CCT94/22
[2023] ZACC 21
Hearing Date: 08 November 2022
Judgement Date: 29 June 2023
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Thursday, 29 June 2023, the Constitutional Court handed down judgment in an application for confirmation of constitutional invalidity granted by the High Court of South Africa, Gauteng Division, Pretoria (High Court). The High Court declared section 40 of the Children’s Act 38 of 2005 (Children’s Act) unconstitutional to the extent that it excludes permanent life partners as the recipients of automatic parental rights and responsibilities arising from the birth of children born as a result of artificial fertilisation. It ordered that the words “permanent life partner” be read in after the word “spouse” and “husband”, wherever such words appear in section 40 of the Children’s Act (impugned provisions).
The applicants, two women in a permanent life partnership, held a desire to have their own children and to establish their own family. To this end, they utilised the medical advances made in the in vitro fertilisation (IVF) process. The first applicant, VJV’s, gamete and the gamete of a donor were fertilised during an IVF process. The embryos were then transferred into the uterus of the second applicant, RT, resulting in her pregnancy. Consequently, twins were born to the applicants.
According to the impugned provisions, the children were regarded as the children of RT. Only she had established rights, responsibilities, duties, and obligations towards the children. The recognition of the rights and responsibilities of RT towards the children was premised on the fact that she gave birth to them. VJV was vested with no such rights and responsibilities, despite the fact that she and the RT were permanent life partners who jointly took and executed the decision to have children.
The first and second respondents were the Minister of Social Development and the Minister of Justice and Constitutional Development, respectively. The Ministers did not oppose the application in the High Court and abided the decision of this Court. The Centre for Child Law (CCL) participated in the High Court proceedings as amicus curiae (friend of the Court) and was admitted in that capacity in the Constitutional Court.
In the Constitutional Court the applicants contended that the impugned provisions: (a) constituted unfair discrimination on the basis of marital status and sexual orientation; (b) violated the dignity of the applicants and others in their position; and (c) were not in the best interests of the child.
First, the applicants argued that the impact of unfair discrimination occurred when a burden was imposed on people who had been victims of past patterns of discrimination such as women, people of colour, gay people, or unmarried people, or wherever the fundamental dignity of a person is violated. Where the discriminating law or action was designed to achieve a worthy or important societal goal, it could make fair what would otherwise be unfair discrimination. They contended that there was no conceivable worthy societal goal that the state could achieve by excluding the first applicant, and others similarly situated, from being regarded as legal parents. The applicants accordingly said that the discrimination against VJV is based on both, her sexual orientation and her marital status.
Second, in respect of their claim that the impugned provisions encroach on their right to dignity, the applicants relied on Dawood v Minister of Home Affairs. There, it was held by this Court that the right to dignity must be interpreted to afford protection to family life. The applicants argued that, despite the Constitution not containing an express right to family life, this Court in Ex Parte Chairperson of the Constitutional Assembly said that this right is indirectly protected by the right to dignity.
Third, the applicants argued that the best interests of their children are not considered in the impugned provisions. They relied on Fletcher v Fletcher where the Appellate Division held that the most important factor to be considered in matters concerning custody and access are the best interests of the child. They contended that it would be in the best interests of their children for them to be regarded as the legal children of both the applicants. They further argued that it is important that VJV be regarded as the legal parent of the children. This is for many reasons, including the rights, but also the responsibilities, which are granted to and expected of a legal parent which would otherwise not apply in this matter, thereby disadvantaging the child.
The CCL agreed with most of the submissions made by the applicants, save for two issues. First, they disputed that the impugned provisions discriminated on the basis of sexual orientation - they said it discriminated against unmarried people in a committed relationship and that this was not constitutionally justifiable.
Second, the CCL raised concerns in respect of the proposed remedy. Its argument was that the inclusion of the words “or permanent life partner” as a long-term measure would not properly cure the defects identified, as the term is open to varying interpretations, could lead to uncertainty which would in turn undermine the best interests of the child.
In a unanimous judgment penned by Kollapen J, the Constitutional Court confirmed the order of constitutional invalidity made by the High Court.
The Court held that traditional notions of family and parenthood have undergone revolutionary change under our constitutional dispensation. This, it said, could 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 recognition that for individual autonomy to flourish it must be enabled to be expressed in its fullest form.
The Court held that 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, it said, was about whether the impugned provisions of section 40 of the Children’s Act were consistent with the Constitution.
The Court held that the impugned provisions singled out marriage as the only relationship that the law recognised, and then assigned parental rights and responsibilities to married persons only in respect of a child born as a result of artificial fertilisation. It held that in our constitutional dispensation the emphasis had shifted away from the form of a relationship to its substance; to the caring and the commitment that is found within it; to the family that lives and thrives within it and to the dignity and self-worth of the people who find themselves within it. This, it held, is consistent with the values of equality and dignity that stand at the forefront of our constitutional order.
Accordingly, the Court found that the impugned provisions created a differentiation of treatment applied to the two different categories of persons: married and unmarried. As the differentiation was on a specified ground for the purpose of section 9(3) of the Constitution, namely marital status, it would constitute discrimination and would activate the presumption that the discrimination was unfair. Further, the Court held that the impact of the discrimination on the basis of marital status was far-reaching. The message that this conveyed was that, although permanent life partners had made the conscious decision to enter parenthood, such a choice was less respected than the same choice made by married partners. Its impact rendered it manifestly unfair and the Court concluded that the impugned provisions resulted in unfair discrimination on the basis of marital status.
On the issue of whether the impugned provisions unfairly discriminated on the basis of the sexual orientation, the Court held that in the category of persons excluded by section 40, not all heterosexual life partners would experience the exclusionary effect of section 40. This was because a relatively small percentage of parties in such a relationship would have experienced infertility and therefore would need access to artificial fertilisation. On the other hand, it was biologically impossible for two females to reproduce coitally. They were entirely reliant on artificial fertilisation processes and, by implication, section 40 of the Children’s Act, to realise their dream of becoming parents to their biological children. Two men in a same-sex partnership would not rely on section 40 of the Children’s Act for the conception of their biological child, as neither man would be capable of being artificially fertilised. Lesbian permanent life partners, who seek to have biologically related children, have no other alternative but artificial fertilisation. The automatic assignment of their rights and responsibilities would accordingly, purely on the basis of their biological reproductive constraints, be exclusively governed by the impugned provisions. Lesbian permanent life partners were therefore disproportionately affected by the differentiation occasioned by the impugned provisions. The Constitutional Court had previously recognised in Pretoria City Council v Walker and confirmed in Mahlangu v Minister of Labour that “a seemingly benign or neutral distinction that nevertheless has a disproportionate impact on certain groups amounts to indirect discrimination”. It was on this basis that the Court took the view that the differentiation on sexual orientation nevertheless constitutes indirect discrimination.
In Mahlangu this Court, in speaking to the intersectionality of discrimination, said that it required no more than an acknowledgement “that discrimination may impact on an individual in a multiplicity of ways based on their position in society and the structural dynamics at play”. The Court held that there can be no legitimate governmental objective for this differentiation between homosexual and heterosexual relationships. It must therefore follow that section 40 of the Children’s Act violated section 9(1) of the Constitution and indirectly discriminated against the applicants, as lesbian permanent life partners, on the basis of their sexual orientation.
This Court in Dawood v Minister of Home Affairs confirmed that the right to dignity included the right to family life. It held that the dignity of the parties had been infringed upon as the impugned provision impeded the achievement of personal fulfilment. Here too, the applicants’ right to dignity, and by extension family life, had been limited in that they were unable to, through the choices they had made, achieve the fulfilment of parenthood. The Court held that section 40 diminished the value and worth of the applicants by saying that they were not worthy of being treated in the same manner as their married counterparts and constituted a limitation of the right of the applicants to have had their dignity respected and protected.
The Court held that section 40 of the Children’s Act treated children born of unmarried persons differently from those born of married persons. In Centre for Child Law v Director General: Department of Home Affairs, this Court held such differential treatment to be “invidious and unconstitutional”. This Court further held that the differentiating between children based on their status of being born out of wedlock is not consistent with the best interests of the child principle. The Court accordingly held that it has been compellingly demonstrated that the impugned provisions were not consistent with the best interests of the child and limited their fundamental rights.
The Court held that the limitation of the applicants’ and their children’s rights to dignity, equality and to have their best interests considered, was not justifiable in terms of section 36 of the Constitution. Accordingly, section 40 was declared unconstitutional to the extent that it excluded permanent life partners as automatic recipients of parental rights and responsibilities.
The Court confirmed the order of the High Court declaring section 40 of the Children’s Act unconstitutional, to the extent that it unfairly and unjustifiably discriminated on the basis of marital status and sexual orientation. It ordered the reading-in of the words “or permanent life partner” after the word “spouse” and “husband” wherever such words appear in section 40 of the Children’s Act as well as the words “or permanent life partners” after the word “spouses” wherever such word appears in section 40 of the Children’s Act. The Court further ordered that the declaration of constitutional invalidity would take effect from 1 July 2007 but that its operation would be suspended for 24 months from the date of the order to afford Parliament an opportunity to remedy the constitutional defects having given rise to the constitutional invalidity. In respect of the period 1 July 2007 until the date of the order, the Court ordered that the reading-in would not apply, unless parties chose to invoke the benefit of the order by way of a written declaration, signed by both parties. In the event that rights and responsibilities in respect of the child so born had been assigned to any third party/ies in terms of the Children’s Act or any other legislation, or were enjoyed by a former partner of the permanent life partnership only, the party seeking to invoke the benefit of the order would be required to give written notice to the party/ies or former partner of their intention to do so and afford the third-party or former partner an opportunity to object thereto. If the third party or former partner objected in writing thereto, the matter would then have to be referred to the Children’s Court. The Children’s Court, after considering the matter could make any order that is just and equitable and in doing so, shall be guided by what the best interests of the child in question require. The Court ordered that in the event that Parliament does not remedy the constitutional deficiency in section 40 within the period provided for, or any extended period granted by the Court, then section 40 will be deemed to read as set out above. Lastly the Court ordered that the respondents were to pay the applicants’ costs in the Court including the costs of two counsel..
The Full judgment here