A same-sex couple will begin treatment at a fertility clinic with a ground-breaking court order in hand that says they will both be mother to a child who has yet to be conceived.
The couple, who cannot be named, approached the Cape Town high court last month before embarking on in-vitro fertilisation (IVF), using a known sperm donor, because they believe the laws on parental rights and responsibilities do not cover same-sex relationships.
Their attorney, fertility law specialist Andrew Martin, said the couple went to court because the law said the only way a non-biological mother could obtain parental rights was to adopt or enter into a parental rights agreement with the biological mother.
In this case, however, the woman whose egg will be used and who will carry the child to birth, and her fiancée, both wanted to be declared the child’s mothers prior to conception.
Martin told the Sunday Times: “There is no automatic assignment of parental rights or responsibilities and, in my opinion, adoption and a parental rights agreement are not suitable or appropriate in this circumstance.
“The legislation does not make provision for this kind of scenario or circumstance and therefore we had to approach the court to provide the couple with the reassurance that they would both be parents from the moment of birth.”
The law allows for the husband of a woman who has used a sperm donor to be listed as the child’s father but does not do the same for gay partners. The order the Cape Town couple obtained allows them both to be listed as parents on the birth certificate.
In her founding affidavit, the woman who will be carrying the child said she and her fiancée had wanted to have a child since the start of their relationship four years ago. She said they led a stable life, had a home and were financially stable.
The women said they both possessed the “complete ability to care for the child in all respects, both financial and otherwise, and intend to have constant contact with the day-to-day parenting of the child”.
Martin said the couple’s court application was the first of its kind in SA and “a step towards providing clarity on parental rights and responsibilities in the fertility industry, which has far outpaced our current legislative provisions. It also allows for the non-biological mother or partner to obtain certainty as to her role in the child’s life.”
University of KwaZulu-Natal bioethics lecturer Sheetal Soni said the case highlights the need for the law to be interpreted in an inclusive manner.
“In terms of the current law, when a heterosexual couple present themselves for IVF, the woman receives full parental rights and responsibilities on the basis that she is the biological mother of the child,” she said.
“Her husband will automatically receive rights and responsibilities in respect of the child on the basis that he is her husband. However, the same automatic reception of rights does not happen where the woman’s spouse is a female.”
This application is the first of its kind in SA and is a step towards providing clarity on parental rights and responsibilities in the fertility industry, which has far outpaced our current legislative provisions Andrew Martin, fertility lawyer,