Lesbians: Biological parents
Philip de Bruin
Johannesburg - The stage is set for South Africa to become the first country in the world where two women - a lesbian couple - will both be recognised under the law as the biological parents of twins - without a legal father.
In a surprise move, the ministers of justice and internal affairs in the Constitutional Court withdrew their opposition to the legal recognition of two women as biological parents of the children. Initially, both ministers strongly objected such an order.
This unique situation developed when the two women from Durban - only known as J and B under an order of the Durban High Court - both contributed biologically to the conception of their twins.
An egg cell was removed from J, fertilised outside her body with sperm from an anonymous donor and then planted into B's uterus. B later gave birth to twins.
When the children's births were registered, J gave B as the biological mother and scratched out the reference to "biological father" and replaced it with "parent". The department of internal affairs refused to accept this registration.
However, the Durban High Court ordered that the registration had to be accepted. Because the terms of the Act on Marriages and Births were found to be unconstitutional, the Constitutional Court must ratify the Durban court's ruling. Arguments will be heard on February 27.
The ministers vehemently opposed the registration of two lesbian women as the two biological parents of the twins in Durban and it was expected that the same would happen in the Constitutional Court.
However, legal representatives of the ministers handed in court documents on Tuesday in which they stated that J and B's application had merit and therefore the ministers no longer opposed the Durban court ruling.
In the documents, they referred to several court cases where gay rights were acknowledged as well as to the Law Commission's draft legislation on children. The documents stated that it was clear it would amount to discrimination against J and B if they were not both recognised as biological parents.
The ministers requested that the implementation of the court order be postponed for a year to allow parliament the opportunity to change the legislation.