Same-sex unions and guardianship of children
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2004
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The South African Law Journal
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University of Cape Town
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Abstract
This note considers three issues concerning children and same-sex partnerships that have come before the Constitutional Court in recent cases,namely, adoption, the status of children born as a result of artificial insemination, and guardianship.In Du Toit & another v Minister of Welfare and Population Development & others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC) the applicants, partners in a long-standing lesbian relationship, had initially brought an application before the High Court to determine their claim jointly to adopt two children.The High Court challenge impugned the validity of ss 17(a),17(c),and 20(1) of the Child Care Act 74 of 1983,and s 1(2) of the Guardianship Act 192 of 1993, in so far as they provided for the joint adoption and guardianship of children by married couples only. (Because of these legislative restrictions, the second applicant alone had become the adoptive parent.) The court held that the provisions in question violated the applicants’ rights to equality and dignity, and did not give paramount importance to the best interests of the child, as required by s 28(2) of the Constitution of the Republic of South Africa, Act 108 of 1996. To remedy these defects, the court ordered that certain words should be read into the provisions to allow for the joint adoption and guardianship of children by same-sex life partners (see Du Toit & another v Minister of Welfare and Development & others 2001 (12) BCLR 1225 (T)).
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Reference:
Himonga, C. (2004). Same-sex unions and guardianship of children: notes. South African Law Journal, 121(4), p-730.