On application for confirmation of the order of constitutional invalidity granted by the High Court of South Africa, Gauteng Division, Pretoria. The following order is made:
1. The declaration of constitutional invalidity of section 40 of the Children’s Act 38 of 2005 (Children’s Act) made by the High Court is confirmed in the terms set out in paragraphs 2, 3, 4, 5 and 6 of this order.
2. It is declared that the impugned provisions of the Children’s Act unfairly and unjustifiably discriminate on the basis of marital status and sexual orientation by excluding the words—
(a) “or permanent life partner” after the word “spouse” and “husband” wherever such words appear in section 40 of the Children’s Act; and
(b) “or permanent life partners” after the word “spouses” wherever such word appears in section 40 of the Children’s Act.
3. The declaration of constitutional invalidity referred to in paragraph 1 takes effect from 1 July 2007, but its operation is suspended for 24 months from the date of this order to afford Parliament an opportunity to remedy the constitutional defects giving rise to the constitutional invalidity.
4. From the date of the order of this Court section 40 of the Children’s Act will read as follows – the underlined words being read into the section as it is currently formulated:
“(1) (a) Whenever the gamete or gametes of any person other than a
married person or his or her spouse or permanent life partner have been used with the consent of both such spouses or permanent life partners for the artificial fertilisation of one spouse or one permanent life partner, any child born of that spouse or permanent life partner as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses or permanent life partners as if the gamete or gametes of those spouses or permanent life partners had been used for such artificial fertilisation.
(b) For the purpose of paragraph (a) it must be presumed, until the contrary is proved, that both spouses or permanent life partners have granted the relevant consent.
(2) Subject to section 296, whenever the gamete or gametes of any person have been used for artificial fertilisation of a woman, any child born of that woman as a result of such artificial fertilisation must for all purposes be regarded to be the child of that woman.
(3) Subject to section 296, no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when—
(a) that person is the woman who gave birth to that child; or
(b) that person was the husband or permanent life partner of such woman at the time of such artificial fertilisation.”
5. In respect of the period 1 July 2007 until the date of this order, the following shall be the position:
(a) The reading in provided for in paragraph 4 above will not apply to persons who were permanent life partners at the time of the artificial fertilisation unless they invoke the benefit of this order by a written declaration signed by both of them. In such event the provisions of section 40(1)(a) as read in will apply.
(b) In the event that rights and responsibilities in respect of the child/children so born has been assigned to any third party/ies in terms of the Children’s Act or any other legislation, or are enjoyed by a former partner of the permanent life partnership only, then:
(i) The party seeking to invoke the benefit of this order will give written notice to the party/ies or former partner of their intention to do so and afford the third party or former partner with an opportunity to object thereto.
(ii) If the third party or former partner objects in writing thereto, the matter must be referred to the Children’s Court which will determine the procedure to be followed and issue appropriate orders and directions within its powers.
(iii) The Children’s Court, after considering the matter may make any order that is just and equitable and in doing so shall be guided by what the best interest/s of the child/children in question require.
6. In the event that Parliament does not remedy the constitutional deficiency in section 40 within the period provided for in paragraph 3 of this order, or any extended period granted by this Court, section 40 will be deemed to read as set out in paragraphs 4 and 5 above.
7. The respondents are to pay the applicants’ costs in this Court, including the costs of two counsel.