The Constitutional Court last week faced yet another application regarding the vital issue of modern families wanting to keep up with the times.

A lesbian couple, faced with the problem that only one of them can legally be the mother of their child, asked the apex court to change the law, notes a Saturday Star report.

The applicants are life partners who want to start a family. They decided to have a baby by in vitro fertilisation and have earmarked three embryos that are ready to be transferred. These were brought into being by using the first applicant’s gamete and that of a donor.

The plan is to transfer the gametes to the uterus of the second applicant. This is to ensure that both women are biologically connected to the child.

But the legal problem facing them is that the first mother, although her gamete is used, will not be recognised in law as the legal parent of the child.

This is because section 40 of the Children’s Act, dealing with the rights of the child conceived by way of artificial fertilisation, only allows for a citation where a man and a woman, married or not, conceive a child by artificial insemination.

The law does not provide for a situation where two women who are in a committed relationship conceive a child by using the fertilised gamete of one woman implanted in the other. 

The issue before the court is whether the Children’s Act is unconstitutional in this regard.

Neither the Ministry of Social Development nor the Ministry of Justice opposed the application. The Centre for Child Law, which entered the fray as a friend of the court, supported the application, notes the Saturday Star report.

The Gauteng High Court (Pretoria) paved the way for lesbian couples to be recognised as equal parents of a child conceived through artificial insemination in an earlier ruling.

It declared that section 40 of the Children’s Act was inconsistent with the Constitution to the extent that it did not include the words ‘permanent life partner’ after the words ‘spouse’ and ‘husband’.

While this was the first step towards victory for these mothers, the Constitutional Court must confirm the issue.

The court has reserved judgment on whether it would order Parliament to change the law in this regard.

Full Saturday Star report