VJV AND ANOTHER v MINISTER OF SOCIAL DEVELOPMENT AND ANOTHER [2023] ZACC 21 – 29 JUNE 2023
The Constitutional Court ruled on an application for validation of a constitutional invalidity that was approved by the High Court of South Africa, Gauteng Division, Pretoria (High Court). The High Court had previously determined that section 40 of the Children’s Act 38 of 2005 (Children’s Act) was unconstitutional, as it didn’t give permanent life partners the same automatic rights and responsibilities for children conceived via artificial fertilisation as it does to spouses and husbands. As a resolution, the High Court ruled that the addition of the term “permanent life partner” following the words “spouse” and “husband” in every occurrence within section 40 of the Children’s Act.
The applicants, a pair of women in a permanent life partnership, desired to form their own family and have their own children. They leveraged the advancements in in vitro fertilisation (IVF) technology to realise this goal. In this process, the first applicant, VJV’s gamete was fertilised with a donor’s gamete during the IVF procedure. Following this, the embryos were implanted into the uterus of the second applicant, RT, leading to her pregnancy. Consequently, the couple welcomed twins into their family.
The first and second respondents were the Minister of Social Development and the Minister of Justice and Constitutional Development, respectively. These Ministers did not oppose the application in the High Court and complied with the Constitutional Court’s decision. The Centre for Child Law (CCL) participated in the High Court proceedings as a friend of the Court (amicus curiae) and was admitted in that capacity in the Constitutional Court.
In the Constitutional Court, the applicants argued that the contested provisions:
(a) unfairly discriminated based on marital status and sexual orientation;
(b) violated the dignity of the applicants and others in their position; and
(c) were not in the best interests of the child.
Firstly, the applicants made the case that unfair discrimination occurs when a burden is placed on individuals who have been victims of historical patterns of discrimination, such as women, people of colour, gay individuals, or unmarried individuals, or when the fundamental dignity of a person is violated. They argued that if a law or action that discriminates is designed to achieve a significant societal goal, it could render what would otherwise be unfair discrimination as fair. They contended that there was no conceivable significant societal goal that the state could achieve by excluding the first applicant, and others in similar situations, from being recognised as legal parents. Therefore, the applicants asserted that the discrimination against VJV is based on both her sexual orientation and her marital status.
Secondly, regarding their claim that the contested provisions infringe on their right to dignity, the applicants referred to the case of Dawood v Minister of Home Affairs [2000] ZACC 8; 2000. In this case, the Constitutional Court ruled that the right to dignity must be interpreted to provide protection to family life. The applicants argued that, even though the Constitution does not explicitly include a right to family life, the Constitutional Court in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) stated that this right is indirectly protected by the right to dignity.
Thirdly, the applicants contended that the contested provisions did not take into account the best interests of their children. They cited the case of Fletcher v Fletcher1948 (1) SA 130 (A), where the Appellate Division ruled that the child’s best interests are the most crucial factor in matters concerning custody and access. They argued that it would be in their children’s best interests for them to be recognized as the legal children of both applicants. They further argued that it is crucial for VJV to be recognized as the legal parent of the children. This is due to numerous reasons, including the rights and responsibilities that are granted to and expected of a legal parent, which would otherwise not apply in this case, thereby disadvantaging the child.
The CCL agreed with most of the applicants’ arguments, except for two points. Firstly, they disagreed that the contested provisions discriminated based on sexual orientation – they argued that it discriminated against unmarried individuals in a committed relationship, and this was not constitutionally justifiable.
Secondly, the CCL expressed concerns about the proposed remedy. They argued that including the words “or permanent life partner” as a long-term solution would not adequately address the identified defects, as the term could be interpreted in various ways, potentially leading to uncertainty that could undermine the child’s best interests. In a unanimous judgment written by Justice Kollapen, the Constitutional Court confirmed the High Court’s order of constitutional invalidity.
The Court stated that traditional concepts of family and parenthood have experienced revolutionary changes under our constitutional framework. It attributed this to several factors: the strong commitment to inclusivity and equality demonstrated by our Constitution; the celebration of diversity as a source of richness rather than division; and the recognition that individual autonomy needs to be expressed in its fullest form to truly flourish.
The Court asserted that if South Africa was characterised by an obsession with difference and exclusion before the constitution, then the post-democracy era must represent a victory for inclusion and diversity. It stated that this case was about determining whether the contested provisions of section 40 of the Children’s Act were in line with the Constitution.
The Court ruled that the contested provisions singled out marriage as the only relationship recognised by the law, and then allocated parental rights and responsibilities solely to married individuals in relation to a child born as a result of artificial fertilisation. The Court stated that under our constitutional framework, the focus has shifted from the form of a relationship to its substance; to the care and commitment found within it; to the family that lives and thrives within it, and to the dignity and self-worth of the individuals within it. The Court held that this was in line with the values of equality and dignity that are central to our constitutional order.
The Court thus established that the disputed sections constituted disparate treatment between two distinct groups of individuals: the married and the unmarried. This differentiation, built upon a criterion defined in section 9(3) of the Constitution – marital status, amounted to discrimination, thereby initiating the assumption that such discrimination was unfair. Furthermore, the Court maintained that the effects of discrimination based on marital status were broad-ranging. The implication being that even though permanent life partners had made an informed decision to become parents, their choice was accorded less respect than the identical choice made by married couples. The Court deduced that the repercussion of this was unequivocally unfair, leading to the conclusion that the contested sections resulted in unjust discrimination based on marital status.
Regarding the question of whether the contested provisions unfairly discriminated on the basis of sexual orientation, the Court ruled that not all heterosexual life partners in the category of individuals excluded by section 40 would experience the exclusionary effect of section 40. This was because only a relatively small percentage of individuals in such relationships would have experienced infertility and therefore would require access to artificial fertilisation.
Conversely, it is biologically impossible for two women to reproduce naturally. They are entirely dependent on artificial fertilisation processes and, by implication, section 40 of the Children’s Act, to fulfil their desire to become parents to their biological children. Two men in a same-sex partnership would not rely on section 40 of the Children’s Act for the conception of their biological child, as neither man would be capable of being artificially fertilised.
Lesbian life partners wishing to conceive biological children have no alternative but to use artificial fertilisation. Consequently, the automatic allotment of their parental rights and responsibilities, which is solely determined by their biological reproductive limitations, is entirely governed by the disputed provisions. As such, these provisions disproportionately impact lesbian life partners.
In previous rulings such as Pretoria City Council v Walker [1998] ZACC 1; 1998 (2) SA 363 (CC) and reaffirmed in Mahlangu v Minister of Labour [2020] ZACC 24; 2021 (2) SA 54 (CC); 2021 (1) BCLR 1 (CC), the Constitutional Court recognised that a seemingly benign or neutral distinction that disproportionately affects certain groups results in indirect discrimination. It was based on this precedent that the Court determined that the difference in treatment based on sexual orientation indeed amounted to indirect discrimination.
In Mahlangu, the Constitutional Court, while discussing the intersectionality of discrimination, stated that it required nothing more than an acknowledgment “that discrimination can affect an individual in multiple ways based on their societal position and the structural dynamics at play.” The Court ruled that there could be no legitimate governmental objective for this differentiation between homosexual and heterosexual relationships. It must therefore follow that section 40 of the Children’s Act violated section 9(1) of the Constitution and indirectly discriminated against the applicants, as lesbian permanent life partners, based on their sexual orientation.
The Constitutional Court, in Dawood v Minister of Home Affairs, confirmed that the right to dignity included the right to family life. It ruled that the dignity of the parties had been infringed upon as the contested provision hindered the achievement of personal fulfilment. Here too, the applicants’ right to dignity, and by extension family life, had been limited in that they were unable to achieve the fulfilment of parenthood through the choices they had made. The Court ruled that section 40 diminished the value and worth of the applicants by implying that they were not worthy of being treated in the same manner as their married counterparts and constituted a limitation of the right of the applicants to have their dignity respected and protected.
The Court ruled that section 40 of the Children’s Act differentiated between children born to unmarried individuals and those born to married individuals. In the case of Centre for Child Law v Director General: Department of Home Affairs [2021] ZACC 31; 2022 (2) SA 131 (CC); 2022 (4) BCLR 478 (CC) at para 71, the Constitutional Court deemed such differential treatment to be “harmful and unconstitutional”. The Constitutional Court further asserted that distinguishing between children based on their status of being born out of wedlock is not in line with the principle of the child’s best interests. The Court, therefore, determined that it has been convincingly shown that the contested provisions were not in line with the best interests of the child and limited their fundamental rights.
The Court ruled that the limitation of the applicants’ and their children’s rights to dignity, equality, and to have their best interests considered, was not justifiable under section 36 of the Constitution. As a result, section 40 was declared unconstitutional to the extent that it excluded permanent life partners from automatically receiving parental rights and responsibilities.
The Court confirmed the High Court’s order declaring section 40 of the Children’s Act unconstitutional, to the extent that it unfairly and unjustifiably discriminated based on marital status and sexual orientation. It ordered the insertion of the words “or permanent life partner” after the words “spouse” and “husband” wherever they appear in section 40 of the Children’s Act, as well as the words “or permanent life partners” after the word “spouses” wherever it appears in section 40 of the Children’s Act.
The Court additionally ruled that the declaration of constitutional invalidity would be effective from 1 July 2007, but its implementation would be postponed for 24 months from the date of the order. This delay was intended to provide Parliament with the opportunity to rectify the constitutional flaws that led to the constitutional invalidity. Regarding the period from 1 July 2007, until the date of the order, the Court ruled that the reading-in would not apply unless parties chose to invoke the benefit of the order through a written declaration signed by both parties.
In cases where rights and responsibilities concerning the child born had been assigned to any third party or parties under the Children’s Act or any other legislation, or were enjoyed solely by a former partner of the permanent life partnership, the party seeking to invoke the benefit of the order would need to provide written notice to the party or parties or former partner of their intention to do so. This would allow the third party or former partner the opportunity to object. If the third party or former partner objected in writing, the matter would then need to be referred to the Children’s Court.
Upon evaluating the issue, the Children’s Court could make any decision that is fair and in line with the best interests of the child involved. The Court mandated that if the Parliament failed to correct the constitutional shortcoming within section 40 during the allotted time, or any extension provided by the Court, then section 40 would be interpreted as previously detailed.
Finally, the Court ordered that the respondents were to cover the applicants’ costs in the Court, including the costs of two counsel.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town from the media statement by the Constitutional Court, found here: A blog, managed by Lawsplash, for more information on Family Law read more here.
Read the full Judgement below and the Constitutional Court media statement here: