J and B v Director-General, Department of Home Affairs and Others

The applicants were partners in a permanent same-sex life partnership. Through artificial insemination, the second applicant gave birth to twins using ova from the first applicant and sperm from an anonymous donor. The second applicant could be registered as the children’s mother, but the first applicant could not be registered as a parent under the Births and Deaths Registration Act regulations. Section 5 of the Children’s Status Act 82 of 1987 recognised parental status in cases of artificial insemination only within heterosexual marriage. The applicants approached the High Court for constitutional relief to have both recognised as parents and to challenge the constitutionality of section 5 of the Children’s Status Act.

The Constitutional Court confirmed the declaration of constitutional invalidity of section 5 of the Children’s Status Act. The word “married” was struck out and the words “or permanent same-sex life partner” were read in after references to “husband”, subject to limited severance to avoid inappropriate deeming language. The order was not suspended. The applicants were entitled to be recognised as parents of the children.

This case is a landmark in South African equality and family law, extending legal recognition of parental status to permanent same-sex life partners in the context of artificial insemination. It reinforced constitutional protection against discrimination on the basis of sexual orientation and affirmed the best interests of the child. The judgment also clarified the Constitutional Court’s approach to remedies such as reading in and severance, and contributed to the progressive development of jurisprudence recognising same-sex family relationships.