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Court gives gay couple equal rights as mothers

Publish date: 20 January 2020
Issue Number: 856
Diary: IBA Legalbrief Africa
Category: South Africa

A same-sex couple will begin treatment at a fertility clinic with a ground-breaking court order in hand that says they will both be mother to a child who has yet to be conceived. A Sunday Times report says the couple approached the Western Cape High Court last month before embarking on in-vitro fertilisation, using a known sperm donor, because they believe the laws on parental rights and responsibilities do not cover same-sex relationships. Their attorney, fertility law specialist Andrew Martin, said the couple went to court because the law said the only way a non-biological mother could obtain parental rights was to adopt or enter into a parental rights agreement with the biological mother. In this case, however, the woman whose egg will be used and who will carry the child to birth, and her fiancée, both wanted to be declared the child’s mothers prior to conception. Martin reportedly told the Sunday Times: ‘There is no automatic assignment of parental rights or responsibilities and, in my opinion, adoption and a parental rights agreement are not suitable or appropriate in this circumstance. The legislation does not make provision for this kind of scenario or circumstance and therefore we had to approach the court to provide the couple with the reassurance that they would both be parents from the moment of birth.’ The law allows for the husband of a woman who has used a sperm donor to be listed as the child’s father but does not do the same for gay partners. The order the Cape Town couple obtained allows them both to be listed as parents on the birth certificate.

Full Sunday Times report (subscription needed)