Legislation has always been built on the social custom of children being born within wedlock. With more partners choosing not to make their relationship a legal agreement, the issue of parenthood when a child is born out of wedlock should be addressed. According to South African law, the biological father of a child can still be named as a legal parent on the child’s birth certificate as long as he was in a relationship with the mother at the time of conception or birth, and consents to being appointed as a legal parent.
In such a case the issue of parental rights really isn’t too problematic. But what happens when one of the parents isn’t a biological parent?
In January of this year, a first for same-sex parenthood occurred. The Cape Town High Court awarded a same-sex couple equal parental rights for a child born through in vitro fertilisation (IVF). When it comes to IVF in heterosexual relationships, legislation has always granted the non-biological father parental rights over the sperm donor. Until now, the law did not make the same allowance for non-biological mothers in homosexual relationships.
This development may even result in a change in legislation that will simplify the legal creation of alternative families in the future, such as male same-sex couples who can still only obtain parental rights through adoption procedures. Thankfully same-sex couples are not penalised in any way for their sexual orientation during their adoption application, going through the same screening processes as any other couple or individual.
When it comes to same-sex marriages, and children brought into such a union, the legislation seems to have adapted adequately. While same-sex marriages may be governed by the Civil Union Act instead of the Marriage Act that governs heterosexual marriages, the legislation is essentially identical and offers the same rights and responsibilities for parents of both sexual orientations. Parental rights and responsibilities are further also governed by the Children’s Act, regardless of the parents’ sexual orientation or marital status. The Children’s Act’s sole purpose is ensuring the wellbeing and safety of children and has no interest in the social and marital affairs that fall outside of this purpose.
Choosing to become a parent and committing oneself to the responsibility of raising a child and ensuring their wellbeing without being forced to do so by social norms or cultural obligations is an act that should be commended, not hindered by society or legislation. Luckily, it seems as if the times and laws are changing equally.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)