Lesbian who faced having to adopt her own children wins right to be named mother
A lesbian in South Africa will no longer have to adopt her own children to be recognised as their mother after a landmark court ruling.
The Gauteng High Court in Pretoria ruled against a piece of legislation which meant that, when children are conceived through insemination, only the person who carried them and their “husband” can be legally named parents.
The couple who appealed the law conceived two children through IVF. One wife carried the babies using the other’s eggs – both have kept their identities private to protect their children.
Despite having a genetic link to her children, Section 40 of the Children’s Act meant the partner whose eggs were used had no legal right to be recognised as parent and faced having to adopt her kids.
The couple’s application to the court argued that the law is discriminatory against same-sex couples and inconsistent with the constitution. Four weeks after their twins were born, a judge agreed.
Judge C Van Veenendaal said that the 2005 Children’s Act does not reflect the realities of so many families in South Africa.
Not only does Section 40 take aim at same-sex couples, but also “unfairly discriminates on the basis of marital status in terms of its treatment of children born in or out of wedlock”.
“In respect of partners who have had children by way of artificial fertilisation, but relationship not recognised, their right to equality and dignity are violated in regard to the inroads to their right to family life,” Veenendaal said, per TimesLIVE.
The judge also ruled that the law violated the right to family and/or parental care of children born via IVF and to “unmarried parents”.
“When a child is hurt at school, the school will only be obliged to call on the biological parent, while the second parent has no say over the treatment of the child,” Veenendaal added.
The couple can now both legally be named mothers to their children.
“For me, knowing that I am in the position to make life better for every gay and lesbian brings a sense of purpose,” one-half of the couple told TimesLIVE. “I am ecstatic.”
But it’s not quite an end to their sleepless nights – their twins have been keeping them up most nights, they said, but they wouldn’t have it any other way.
“They both smile,” the woman said. “We get joy from the little things they do. One is quiet while the other one has a very loud mouth. We can already see who the cheeky one is.”
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