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ConCourt raps govt on gays
27/02/2003 17:28 - (SA)
Johannesburg - Constitutional Court judges chided the government on Thursday for a lack of urgency in addressing gaps left in legislation now that same-sex relationships are legally and socially accepted.
Current legislation, declared unconstitutional by the Durban High Court, does not recognise as a parent a woman whose artificially fertilised ova were implanted in her lesbian life-partner's womb. The second woman gave birth to twins, a boy and a girl, about 18 months ago.
This means that should the birth mother be so badly injured in an accident that she cannot care for the toddlers, her life-partner would have no legal say over their future, argued Andrea Gabriel.
Gabriel is an advocate appointed by the Durban High Court to represent the twins' rights separately from the two women's rights.
The court has reserved judgment on whether to uphold the Durban court's order, and whether to suspend its order for a year.
Judge Laurie Ackermann broke into argument by State counsel Griffiths Madonsela that, while the government did not oppose the confirmation application, it wanted the court's order suspended for a year.
"Suspend in order for the government to do what?" Ackermann asked.
Favourably viewed
He pointed out that since 1999 the government had been aware that courts were viewing same-sex relationships favourably. There have been several judgments in favour of equality for homosexual and heterosexual life partnerships.
Madonsela argued that there were other interest groups which should have input into new legislation.
Ackermann's view was supported by Judge Kate O'Regan.
She said it was "heartening" that government was addressing the many issues surrounding the requirements of partners in permanent same-sex partnerships. However, this recent movement did not have sufficient weight to counterweigh the rights of other children and their self-proclaimed parents.
The judges were, however, wary about a proposed presumption of consent for the in vitro fertilisation.
O'Regan argued that, theoretically, a woman could undergo in vitro fertilisation entirely without the knowledge of her partner.
"This could put the second person in a difficult position," O'Regan said.
She said that making signed consent would both clarify the same-sex partners' relationship and allow someone who had no knowledge of the procedure a way out.
Several judges pointed out that the faster the matter was cleared up the better it would be for other children and "parents" in a similar situation.
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