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Parental Rights for Same-Sex Partners

Legal Matters

The legal question relating to parental responsibilities and rights of same-sex partners arising from artificial fertilisation came under the spotlight in the Western Cape High Court, where a woman approached the court seeking joint parental responsibilities and rights over a boy (3) conceived by her former partner.

Both women were involved in the child’s upbringing during his first two years, but their relationship soured, leading to their break-up. The other ‘mother’ applied for a court order allowing them both to resume full parental responsibilities and rights regarding the child. The biological mother said she would allow her former lover contact with the child, but would not agree to shared responsibilities and parenting.

The court did not agree with the argument advanced that the applicant did not have any automatic responsibilities and rights, because the couple had chosen not to marry or enter a civil union. It was argued that they must thus, in terms of the Act, be treated as unmarried parents. Further, although an unmarried biological father would have automatic rights under this Act, the applicant in this case was treated differently as she was not biologically linked to the child.

The Children’s Act is clear on the point that someone does not have automatic parental rights in terms of Sections 19 and 22 of the Act if there is no biological link to a child and such a person. Furthermore the Applicant does not acquire automatic rights and responsibilities in terms of Section 40 of the Act which deals with children conceived by artificial insemination. Without a parental agreement the Applicant could therefore only apply to the court in terms of Sections 23(2) and 24(2) of the Act. Common to both these sections is the “best interests” of the child.

In CM v NG the court found that the Applicant did indeed have parental responsibilities and rights as set out in Section 18 of the 2005 Children’s Act as it would be in the best interests of the child to have a relationship with both parents. The court concluded that both parties be co-holders of parental rights and responsibilities in respect of the minor child as contemplated in sections 18(2) (3) (4) and (5) of the Children’s Act and that the Applicant would be co-guardian of the child.

CM v NG is a watershed case for same sex couples with children.

Bregmans Attorneys   www.roylaw.co.za  | Tel: +27 (0)11 646-0335 | Fax: +27 (0)86 680-9142 | Email: roy@roylaw.co.za

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