The biological mother of a child conceived through
in-vitro fertilisation could not bar her former lesbian partner from interacting
with the boy, the Western Cape High Court has ruled.
It would be in the best interests of the four-year-old
child to have a relationship with two parents, acting Judge Nalini Gangen said
last week after the partner, who had separated from the biological mother,
applied to the court for full co-parental responsibilities and rights.
The application had been opposed by the mother, but Ann
Skelton, of the Centre for Child Law, who acted in the child’s best interests,
had argued that there was no reason why the applicant should not be treated as a
man would be in a heterosexual relationship.
A male in the applicant’s position would have been
recognised as the father figure and the bond with the child would have been
recognised as that of a parent, said Skelton.
In her ruling, Gangen said the child was brought up in a
family unit where both parties were regarded as his parents and felt he was
entitled to continue that relationship and bond with the applicant.
“There are many parents who do not care for their
children and it is significant that the applicant wants to be part of the
child’s life and is willing to contribute to his maintenance,” she said.
The parties cannot be named to protect the identity of
the minor child who, the court heard, viewed both women as his parents –
referring to the applicant as “mom” and the biological mother as “mommy”.
According to court documents, the couple began living
together in May 2005 and moved to London a year later, and lived there until
June 2010. In December 2006 they applied to the Cape Fertility Clinic to undergo
artificial insemination and as a result of the procedure done in 2007, they had
a baby boy who was born in England the following year.
When their relationship soured in 2010, the applicant
continued to have contact with their son until 2011 when the biological mother
said it was not in the child’s best interests that such contact continue.
However, the applicant contended that she was being
denied her role as a parent, saying that it had been the intention of both of
them to have a child together
In support of her argument, the applicant produced
documents relating to the in-vitro fertilisation procedure which showed that she
was listed as the husband.
A document also referred to the couple’s lesbian
relationship as the reason for their fertilisation “problem”.
The applicant further submitted written evidence to show
that her former partner had acknowledged her as the child’s other parent.
The biological mother, however, pointed out that only she
was registered as a parent on the child’s birth certificate.
But, the applicant explained, this was because they were
informed in England that it was not possible to have both of them registered as
parents.
In 2003, the Constitutional Court ruled that a child born
by artificial insemination to a lesbian couple was to be regarded as legitimate,
and that the partner who was not the biological parent was entitled to be
regarded as a natural parent and to be recorded on the child’s birth
certificate.