High Court affirms the rights of same-sex parents through IVF

Two engaged women, who cannot be named, approached the court to challenge South Africa’s legislation after seeking to be named as joint parents of a child they planned to conceive through In Vitro Fertilization (IVF).

The Cape Town High Court ruled in favour of the plaintiffs and has allowed the same-sex couple to be named as the joint parents, reports the Sunday Times

The couple plans to have one partner inseminated with the sperm of a donor and carry the child to birth. Current legislation only caters for
opposite-sex couples, and in similar cases such as these, non-biological husbands would automatically be recognised as the father.

However, in the case of two women, the law only provides for the donor to be recognised as the default second parent. While the other woman only has the right to be registered as the mother if she adopts the child or enters into parental rights agreement with the biological mother.

Feeling as though the law did not cater to the needs of same-sex couples, the couple of four years approached the court to both be legally named as joint mothers on the birth certificate.

“The legislation does not make provision for this kind of scenario or circumstance and therefore we had to approach the court to provide the couple with the reassurance that they would both be parents from the moment of birth,” said fertility law expert, Andrew Martin.

Martin hailed the court’s decision as a landmark move and “a step towards providing clarity on parental rights and responsibilities in the fertility industry which has far outpaced our current legislative provisions”.

Furthermore, the court’s order “also allows for the non-biological mother or partner to obtain certainty as to her role in the child’s life,” added Martin.

The couple’s case is an example of how some legislation in South Africa continues to be discriminatory towards LGBTQ+ people and has yet to be amended to conform to the constitution, and because of the exorbitant costs these lawsuits often carry, only those who have greater financial means are able to
afford the costs.