THE EXCLUSION OF PARENTAL RIGHTS AND RESPONSIBILITIES FOR UNMARRIED PARENTS OF CHILDREN CONCEIVED VIA ARTIFICIAL INSEMINATION
THE EXCLUSION OF PARENTAL RIGHTS AND RESPONSIBILITIES FOR UNMARRIED PARENTS OF CHILDREN CONCEIVED VIA ARTIFICIAL INSEMINATION

Summary/Abstract: The Children’s Act 38 of 2005, as the mechanism which gives effect to the rights of children as contained in the Constitution of the Republic of South Africa, 1996 as well as the international treatises, such as the African Charter on the Rights and Welfare of the Child and the United Nations Convention on the Rights of the Child, brought about welcome changes to the concept of parental rights and responsibilities. This is evidenced by the fact that the Children’s Act is child-centred and accentuates the equality and dignity of children. Notwithstanding the noteworthy improvements made by the Children’s Act with regard to the rights and protection of children, there was still a lacuna in the law in respect of section 40 of the Children’s Act as parental rights and responsibilities were not automatically conferred on permanent life partners where their child was conceived by artificial insemination. This was the position until the Constitutional Court confirmation order in V VJV and Another v Minister of Social Development and Another [2023] ZACC 21 which confirmed the decision of the Gauteng High Court declaring section 40 unconstitutional on the basis of marital status and sexual orientation. This legal note discusses the decisions of both the High Court and the Constitutional Court in respect of section 40 of the Children’s Act.

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