In what can be hailed as a victory for same-sex couples who have conceived via artificial insemination, but had split up, the Western Cape High Court has ordered that “both mothers” hold full parental responsibilities over a boy, 3.
Acting Judge Nalini Gangen, in a lengthy judgment on how the two should go about their joint parental responsibilities, ruled that they had to enter into a parental plan.
A facilitator conversant with working with children is to be appointed to assist the mothers if they are unable to reach an agreement concerning the best interests of the child.
The parties are not allowed to be named to protect the child.
The applicant was only stated as CM and the respondent as NG. The two were in a same sex relationship for several years, but never got married.
During the relationship a child was conceived by means of artificial insemination.
Their relationship ended in November 2010 and the respondent took the child with her.
Although the applicant at first had access to the child, the respondent moved from Cape Town to Joburg and eventually refused the applicant access to the child.
The applicant turned to the court for an order granting her full parental rights, although the child would continue living with the respondent.
The Centre of Child Law at the University of Pretoria entered the legal battle as a friend of the court.
The couple went for artificial insemination and the child was born in October 2008.
When the two broke up, the applicant continued seeing the child.
But then the respondent had put an end to it, saying it was not in the child’s best interests.
The applicant said it was their intention to have children together and said she was the child’s other mother.
The respondent denied this.
She said it was her intention to have children and she considered in vitro fertilisation even before her relationship with the applicant.
She said her decision to have a child was not dependent on her relationship with the applicant – she was only involved in the process because of their relationship at the time.
But the applicant submitted documents to the court showing that they .jointly signed documents at the fertility clinic.
The problem of not conceiving on their own was because they were a lesbian couple, the applicant said.
After they broke up, the respondent told the applicant that the child was “their son”.
But in court papers she said she was the biological mother and that the applicant had no relationship to the boy.
For two years after they broke up, the applicant continued to see the child until it was stopped by the respondent.
The judge remarked that on the respondent’s version, it was clear that the relationship between the applicant and the boy was “more than that of a play date, as the respondent would have the court believe”.
Judge Gangen said both parties presented themselves as parents to the child.
They were also clearly a family unit before the parties broke up.
“I am of the view that if if these were parties in a heterosexual relationship, then a male person in the applicant’s position would have been recognised as the father figure. The bond with the child would have been recognised as being that of a parent.
“There is no reason why the applicant should not be treated the same way.”
The judge added that provisions of the Children’s Act made it possible for same sex parents to both have full parental responsibilities over a child. - Pretoria News