The Constitutional Court has confirmed a Gauteng High Court ruling that Section 40 of the Children's Act is unjustifiably discriminatory on the basis of marital status and sexual orientation.

A court bid launched by a lesbian couple argued that the act does not give equal parental responsibilities and rights in relation to their child who was conceived through in vitro fertilisation (IVF).

This is because the act, as it currently reads, does not contain the words "permanent life partner" after "spouse" and "husband".

The legal bid cited the ministers of social development, justice and constitutional development as respondents.

According to court documents, the couple's legal action stemmed from their concern that while married spouses automatically acquire parental responsibilities and rights for children conceived from artificial fertilisation regardless of whether the sperm donor was one of the spouses or not, the same was not true for unmarried couples.

Under the act, only the birth mother acquires automatic parental rights and responsibilities when a child is conceived through artificial fertilisation with the other spouse having to approach the Children's Court to acquire similar rights.

In October 2022, the University of Pretoria-based Centre for Child Law joined the matter as friends of the court.

It said in a statement, "This [act] effectively deprives children born through IVF to unmarried parents of equal recognition and protection from the law."

The Constitutional Court amendment to the act to include "permanent life partner", will take effect retrospectively from 1 July 2007.

However, its application is suspended for 24 months to allow Parliament an opportunity to fix the constitutional deficiency.

The Centre for Child Law hailed the court ruling, saying it provides clarity regarding the parental responsibilities and rights of unmarried couples to children conceived artificially.

"Clear determination of parenthood has a major impact on the exercise of custody, maintenance and guardianship of a child," it said.