Applicants are same-sex life partners who were prevented from jointly adopting two children. Instead only one partner adopted the children and thus the other partner had no legally recognized rights in relation to the children. The Applicants subsequently brought a claim before the Pretoria High Court to challenge the constitutionality of Sections 17(a), 17(c), and 20(1) of the Child Care Act 74 of 1983 (“Child Care Act”), and Section 1(2) of the Guardianship Act 192 of 1993 (“Guardianship Act”), which limit the right to jointly adopt a child to only married couples. Applicants argued that the provisions violated Section 9(3) of the South African Constitution because they discriminated against the Applicants on the basis of sexual orientation. Following the withdrawal of the respondents from the case, the High Court ruled that the named provisions of the Child Care Act and the Guardianship Act violated constitutional rights of equality. The High Court thus ordered that these Sections be interpreted to include the right of same-sex partners to jointly adopt a child. The Applicants applied to the Constitutional Court to confirm the High Court’s judgment.
The issue in this case was whether Sections 17(a), 17(c), and 20(1) of the Child Care Act, and Section 1(2) of the Guardianship Act are unconstitutional because they limit adoption to only married couples, thereby unfairly discriminating against same-sex couples.
The Court reasoned that by restricting the joint adoption of a child to married couples, the Guardianship Act assumes that same-sex life partners are incapable or should not jointly assume guardianship of children. The Court made the same assertion for Section 17 of the Child Care Act. The Court also noted that, but for the restriction on marriage to heterosexual couples, the Applicants could have jointly adopted the children in compliance with the current law. The Court therefore determined that Section 17(a) and (c) of the Child Care Act violate Section 9(3) of the Constitution. The Court also stated that the lack of legal recognition of the other partner as a parent violates her constitutional right to dignity.
The Court determined that the exclusion of competent same-sex partners from jointly adopting children solely on the basis of their sexual orientation violates the best interest of the child provision in Section 28(2) of the Constitution. The Court stated that the joint adoption limitation deprives children of the possibility for family affection and love. By failing to recognize the Applicants as parents, the Acts also diminish the Applicants’ dignity. The Court stated more generally that prohibiting same-sex couples from jointly adopting children discriminates against the Applicants on the basis of their sexual orientation and marital status.
The Court held that any Act that discriminates between heterosexual and same-sex couples in the adoption process is unconstitutional. The Court affirmed the High Court’s decision and ruled that the Acts should grant same-sex partners the right to jointly adopt children.