EJ and Others v Haupt NO (63756/2020) [2021] ZAGPPHC 556; 2022 (1) SA 514 (GP) (11 August 2021)

EJ and Others v Haupt NO (63756/2020) [2021] ZAGPPHC 556; 2022 (1) SA 514 (GP) (11 August 2021)

The court held that section 40 of the Children’s Act must be interpreted to include spouses in a civil union, in line with the constitutional imperative to avoid discrimination and promote equality. The use of the word 'spouse' in section 40(1) demonstrates legislative intent to include same-sex couples, and the exclusionary wording in section 40(3)(b) is limited to the context of a male gamete donor. The court found that both applicants, as spouses in a civil union, automatically acquire full parental rights and responsibilities in respect of the minor child born via artificial insemination, and no adoption is required. The birth registration forms intentionally allow for both spouses to...

Citation
[2021] ZAGPPHC 556
Parties
Applicant: EJ; Applicant: AWJ; Applicant: DHR; Respondent: Adv LC Haupt SC N.O.; Respondent: Centre for Child Law
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 August 2021
Case Number
63756/2020
Procedural Posture
Urgent Application / Final Confirmation of Rule Nisi and Declaratory Relief
Outcome
The rule nisi was made final. Both applicants are declared to have full parental rights and responsibilities in respect of the minor child from birth, and no adoption is required. The birth registration must reflect both applicants as parents. The third applicant, as gamete donor, has no parental rights or obligations.
Judges
Neukircher
Legal Topics
Civil Union Act, Parental Rights and Responsibilities, Artificial Insemination, Birth Registration, Equality Clause, Best Interests of Child
Family and Children Constitutional Law Civil Union Act Parental Rights and Responsibilities Artificial Insemination Birth Registration Equality Clause Best Interests of Child

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Parties

EJ

Applicant

AWJ

Applicant

DHR

Applicant

Adv LC Haupt SC N.O.

Respondent

Centre for Child Law

Respondent

Procedural Posture

Urgent Application / Final Confirmation of Rule Nisi and Declaratory Relief

Legal Issues

  1. 1 Does section 40 of the Children’s Act automatically confer parental rights and responsibilities on the spouse in a civil union where the child shares no genetic link to her?
  2. 2 Is section 40 of the Children’s Act unconstitutional for excluding same-sex female couples from automatic parental rights?
  3. 3 Can the second applicant be registered as a parent of the minor child at the Department of Home Affairs without adoption?

Ratio Decidendi

The court held that section 40 of the Children’s Act must be interpreted to include spouses in a civil union, in line with the constitutional imperative to avoid discrimination and promote equality. The use of the word 'spouse' in section 40(1) demonstrates legislative intent to include same-sex couples, and the exclusionary wording in section 40(3)(b) is limited to the context of a male gamete donor. The court found that both applicants, as spouses in a civil union, automatically acquire full parental rights and responsibilities in respect of the minor child born via artificial insemination, and no adoption is required. The birth registration forms intentionally allow for both spouses to...

Court Disposition

The rule nisi was made final. Both applicants are declared to have full parental rights and responsibilities in respect of the minor child from birth, and no adoption is required. The birth registration must reflect both applicants as parents. The third applicant, as gamete donor, has no parental rights or obligations.

Orders

  • The minor child (A), born on 10 March 2021, is considered to be the child of the First and Second Applicants from the moment of her birth.
  • The First and Second Applicants shall have full parental rights and responsibilities in respect of A as provided for in the Children’s Act 38 of 2005 from the moment of A’s birth.