Where do we stand regarding adoption for non-biological spouses?

Lisa Sonnekus | January 17, 2007

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The Baby-ventures website has been inundated with the same question:
"Now that gay marriage is legal, where do we stand regarding adoption, for the non-biological parent, in a same-sex marriage?"

Before South Africa legalized gay marriages, the partner of the non-biological parent had to adopt the child born into the relationship in order to receive full parental rights. Now that the law has changed and gay marriages have received legal status, should we expect this situation to change?

Baby-ventures spoke to several experts in this field, including social workers, adoption agencies, and government departments to investigate the issue of adoption of non-biological spouses within a same-sex marriage. We received a couple of definite "no's", some "yeses" and most frequently the "now that is a very interesting question!" response.

It appears that, to date, little or no consideration has been given to how the situation will be handled or the affects of the current law on the situation.

Given that the Civil Union and Marriage Act has only been affective since the 1st of December 2006, the "powers that be" have not yet tackled such a case. Considering the 9 month gestation period, which needs to take place within a gay marriage, the first actual cases will probably only start to surface towards the end of 2007.

We decided to take a look at some possible scenarios:

Scenario one:

If two married women conceive via artificial insemination using an anonymous donor will the non-biological mother also automatically receive full parental rights when the child is born?

The law states that if a heterosexual married couple uses a sperm donor who has surrendered his parental rights (e.g. anonymous donor from a sperm bank) the man, within the heterosexual marriage, will automatically have full parental rights when the child is born.

The Children's Bill 2003, Chapter 4, 40.(1) (a) states under the Rights of children conceived by artificial insemination the following:

"Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses were used for such artificial fertilisation."

The question is whether the current law is going to recognise the non-biological mother within in lesbian married couple as if the child is from the gamete or gametes of the spouse. In the case of two women – obviously no semen existed in the first place and I wonder if the court will see it as the gamete of the non-biological mother! This is certain to spark some very interesting debates.

Scenario number two:

When two married men conceive via a surrogate mother, the child will biologically belong to one of the two men. Due to a third person being involved during the conception and carrying of the child, a strenuous legal procedure still lies ahead between the couple and the surrogate. This would be the case whether a heterosexual married couple or a same-sex married couple is involved. In either scenario an adoption will still need to occur.

Conclusion

When a new Act, such as the Civil Union and Gay Marriages Act, is introduced, it is inevitable that "teething" problems will occur. In fairness, I honestly don't think anybody thought that Gay Marriage would achieve a legal status in South Africa when writing the legislation. Naturally, we cannot foresee what will happen in the future, and the courts, parliaments and other bodies will have to engage with the challenges as they arise.

Laws will have to be adapted, with certain amendments, to accommodate married same-sex couples in situations such as those mentioned above. It is foreseeable that this will not be the first challenge that lies ahead for us.

Various scenarios will no doubt be tested through the courts and will be eventually be resolved and set certain precedents. One thing is certain however, that is that the next generation will enjoy a fruitful life replete with the benefits previously offered only to heterosexual couples. This will include their rightful place around the table of parenthood.

Send your comments to Lisa Sonnekus. – Issued by Baby-ventures

Baby-ventures is a safe, supportive place for the gay community to learn more about options for conceiving, parenting, and nurturing a family.

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