South Africa’s Constitutional Court affirms equal parental rights

South Africa’s Constitutional Court affirms equal parental rights

On the 29th June 2023, the Constitutional Court of South Africa delivered a monumental judgment that resonates with the principles of equality, dignity, and the best interests of the child. The case centred around the exclusion of permanent life partners as automatic recipients of parental rights and responsibilities under Section 40 of the Children’s Act 38 of 2005 (Children’s Act). The Court’s decision not only rectified this discriminatory provision but also celebrated the evolving landscape of family dynamics in a diverse and inclusive society such as South Africa.


The dispute at hand emerged when two women in a permanent life partnership sought to establish their own family through in vitro fertilization (IVF). The birth mother was legally recognized, while her partner was denied the same parental rights, despite their joint decision to become parents. The High Court declared the discriminatory Section 40 unconstitutional, asserting that the exclusion of permanent life partners undermined dignity and equality. The Constitutional Court, in a unanimous judgment authored by Kollapen J, upheld this order and extended it to address unfair discrimination based on sexual orientation.


At the heart of the Court’s ruling was the principle that the Constitution’s commitment to inclusivity and equality mandates the recognition of diverse family structures. The Court emphasized that modern notions of family and parenthood have evolved under the constitutional framework, and it is the commitment to care, the commitment itself, and familial relationships that matter most. Traditional markers of family formation have given way to valuing the substance of relationships over their form.


The Court meticulously addressed the Applicants’ claims, invoking past judgments and principles. It found that the impugned provisions not only discriminated unfairly on the basis of marital status but also disproportionately affected lesbian permanent life partners, thereby constituting indirect discrimination based on sexual orientation. Furthermore, the Court emphasized the paramount importance of the best interests of the child and held that the impugned provisions were inconsistent with this principle.


In response, the Constitutional Court crafted a comprehensive remedy that embodies the principles of equality, dignity, and the best interests of the child. The Court ordered the inclusion of “permanent life partner” alongside “spouse” and “husband” throughout section 40 of the Children’s Act. It allowed for a transition period, during which affected parties could invoke the benefits of the new provision through written declarations signed by the relevant parties. In cases where rights and responsibilities were assigned to third parties or former partners who are unable to agree on a declaration, the Children’s Court would ensure a just and equitable resolution guided by the best interests of the child.


The Court’s judgment underscores the transformative nature of the post-democracy era, a triumph for inclusion and diversity over historical exclusion. It signifies a departure from discriminatory practices and recognizes the equal dignity and worth of all individuals, regardless of marital status or sexual orientation.


This Constitutional Court decision marks a significant step forward in the ongoing struggle for equality and justice. By affirming the rights of permanent life partners and their children, this judgment echoes the foundational principles of South Africa’s Constitution. It reinforces the nation’s commitment to inclusivity, celebrates the rich broader picture of family life, and sets a precedent for equal treatment and respect in a rapidly evolving democratic society.

Nomthandazo Sithole is a Legal Officer at the CGE

Opinion Piece By Nomthandazo Sithole