J. and B. v. Director General, Department of Home Affairs and Others

This case summary and analysis was prepared in partnership with the International Reproductive and Sexual Health Law Programme of the University of Toronto for Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts.

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Summary of Facts
Analysis and Decision

Applicants are long-term same-sex partners who conceived a child through artificial insemination. The second Applicant was implanted with sperm from an anonymous donor and ova from the first Applicant and gave birth to twins in August 2001. Applicants applied to the Director General of the Department of Home Affairs (“Respondent 1”) for birth certificates for the twins that listed both applicants as parents. However, Applicants were prohibited from jointly registering as parents of the child. Under the Children’s Status Act of 1987, only the second Applicant was permitted to register as a birth mother. Section 5 of the Act establishes that a child conceived through artificial insemination is considered the legitimate child of a heterosexual married couple, even if they use the sperm or ovum of a third person. This deﬁnition expressly applies only to heterosexual married couples. Applicants therefore challenged Section 5 before the Durban High Court, arguing that the Act discriminated on the basis of sexual orientation and thus violated the non-discrimination clause in Section 9(3) of the Constitution of South Africa (“Constitution”). The High Court interpreted the Act to give homosexual partners the same parental status enjoyed by heterosexual couples. Applicants asked the Constitutional Court to afﬁrm this holding.

In assessing this case, the Court noted that Section 5 Children’s Status Act of 1987 limits its recognition of legitimate parents of children conceived through artiﬁcial insemination strictly only heterosexual married couples. The Court therefore reasoned that same-sex partners do not enjoy the same rights as heterosexual couples, and the differential treatment is based solely on the sexual orientation of the couple. While Section 9(3) of the Constitution prohibits discriminatory treatment based on sexual orientation, Section 36 permits “reasonable and justiﬁable” limitations to constitutional rights. In this case, however, Respondents failed to submit any justiﬁcation for restricting same-sex partners’ constitutional right to nondiscrimination. The Court stated that there is no reasonable and justiﬁable reason for precluding same-sex couples from being recognized as parents of a child conceived through artiﬁcial insemination. The Court therefore found Section 5 of the Act in violation of the Constitution. The Court ordered that Section 5 be interpreted to give same-sex partners the same parental status enjoyed by heterosexual couples.

The Court held that it is unconstitutional to discriminate between heterosexual spouses and same-sex partners in the granting of parental rights to a child conceived through artiﬁcial insemination, and that Section 5 of the Act violates Section 9(3) of the Constitution.