V.J.V and Another v Minister of Social Development and Another (27706/2021) [2022] ZAGPPHC 114 (22 February 2022)

V.J.V and Another v Minister of Social Development and Another (27706/2021) [2022] ZAGPPHC 114 (22 February 2022)

Section 40 of the Children's Act is unconstitutional to the extent that it excludes permanent life partners from automatic parental recognition in cases of artificial fertilisation. The exclusion unfairly discriminates on the basis of marital status, violating the constitutional rights to equality and dignity of both the parents and the children born of such relationships. The court found that the Act's requirement of marriage to establish parental rights does not reflect the reality of modern family structures and fails to protect the best interests of children born to committed unmarried couples. As an interim remedy, the court ordered that the words 'or permanent life partner' be read...

Citation
[2022] ZAGPPHC 114
Parties
Applicant: V[...], V[...], J[...]; Applicant: T[...], R[...]; Respondent: Minister of Social Development; Respondent: Minister of Justice and Constitutional Development
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 February 2022
Case Number
27706/2021
Procedural Posture
Constitutional Application / Judgment
Outcome
Section 40 of the Children's Act is declared unconstitutional to the extent that it excludes permanent life partners; interim reading-in remedy granted; no costs order.
Judges
C Van Veenenendaal
Legal Topics
Children's Act, Artificial Fertilisation, Permanent Life Partnership, Parental Responsibilities, Equality and Dignity, Reading in Remedy
Constitutional Law Family and Children Children's Act Artificial Fertilisation Permanent Life Partnership Parental Responsibilities Equality and Dignity Reading in Remedy

Case Brief

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Parties

V[...], V[...], J[...]

Applicant

T[...], R[...]

Applicant

Minister of Social Development

Respondent

Minister of Justice and Constitutional Development

Respondent

Procedural Posture

Constitutional Application / Judgment

Legal Issues

  1. 1 Whether section 40 of the Children's Act unconstitutionally excludes permanent life partners from parental recognition in cases of artificial fertilisation.
  2. 2 Whether the definition of 'parent' in the Children's Act violates constitutional rights to equality and dignity for unmarried couples and their children.
  3. 3 Whether reading in 'permanent life partner' into section 40 is an appropriate remedy.

Ratio Decidendi

Section 40 of the Children's Act is unconstitutional to the extent that it excludes permanent life partners from automatic parental recognition in cases of artificial fertilisation. The exclusion unfairly discriminates on the basis of marital status, violating the constitutional rights to equality and dignity of both the parents and the children born of such relationships. The court found that the Act's requirement of marriage to establish parental rights does not reflect the reality of modern family structures and fails to protect the best interests of children born to committed unmarried couples. As an interim remedy, the court ordered that the words 'or permanent life partner' be read...

Court Disposition

Section 40 of the Children's Act is declared unconstitutional to the extent that it excludes permanent life partners; interim reading-in remedy granted; no costs order.

Orders

  • Section 40 of the Children's Act, 38 of 2005 is declared inconsistent with the Constitution to the extent that it does not include 'or permanent life partner' after 'spouse' and 'husband' wherever those words appear.
  • The words 'or permanent life partners' are to be read in after 'spouses' wherever that word appears in section 40.