FEATURE Baby-ventures SA GLBT parental rights and the ProBono.Org March 14, 2007 Baby-ventures recently met with ProBono.Org to find ways to assist the visitors of the Baby-venture website with legal advice in matters that are in the public interest. Many cases that influence GLBT individuals also affect a larger group of people. Baby-ventures was also a great source of information to ProBono.Org, assisting them with their current inquiry on GLBT parental rights. Introduction: Pro Bono Publico, also referred to simply as pro bono, is commonly understood as the provision of legal services to poor, marginalised and indigent individuals, groups or communities without a fee or expectation of compensation, in order to enhance access to justice for such persons who cannot afford to pay for legal services. Internationally it is accepted that the legal profession has a particular professional responsibility to give back to their communities. To quote Associate Justice Ruth Ginsburg of the US Supreme Court, "… the noblest principles that have defined the legal professions: to assist the poor, disadvantaged, unpopular, and underprivileged, and to perform public service that enhances the common good". (source: http://www.abanet.org/renaissance) ProBono.Org is a new non-profit initiative to support the pro bono efforts of legal practitioners (attorneys and advocates). It serves as a clearing house, matching people or organisations that have qualifying matters with legal practitioners who are willing to provide pro bono legal services. ProBono.Org focuses on facilitating pro bono legal services for matters in the public interest. Broadly speaking, public interest matters are those that raise issues of broad public concern, impact on disadvantaged or marginalised groups or ultimately affect a number or class of people, not just the individual. A whole gamut of GBLT questions are in the public interest. The one issue about which Baby-ventures's has been approached is that of parental rights. Parental rights: An apparently growing number of gay partners opt to become parents via assisted reproduction. The most common methods of assisted reproduction are artificial insemination ("AI") and in-vitro fertilisation ("IVF"). The impact that the Constitution has had on gay relationships is to ensure that they are treated in the same way – equally, as with heterosexual relationships. The question of parental rights in relation to children conceived by AI was dealt with by the Constitutional Court in the matter of J & B / Department of Home Affairs & others (Case CCT 46/02). As this case was heard before the Civil Union Act became part of the law of South Africa, the lesbian couple who approached the court were not legally married, but they were considered "permanent same-sex life partners". The J & B matter was first heard in the Durban High Court, which ruled that the law (The Children's Status Act 82 of 1987) dealing with the parental rights in relation to children conceived by AI was inconsistent with the Constitution. It further ordered the Department of Home Affairs to issue birth certificates for the children and to register the births of the children, reflecting the partner who gave birth to the children as the mother, and the other partner as their parent. The Constitutional Court agreed with the judgment of the Durban High Court, and as a result, the relevant section of the Children's Status Act now reads: 1 (a) Whenever the gamete or gametes of any person other than a woman or her husband or permanent same-sex life partner have been used with the consent of both that woman and her husband or permanent same-sex life partner for the artificial insemination of that woman, any child born of that woman as a result of such artificial insemination shall for all purposes be deemed to be the legitimate child of that woman and her husband or permanent same-sex life partner. (b) For the purposes of paragraph (a) it shall be presumed, until the contrary is proved, that both the woman and her husband or permanent same-sex life partner have granted the relevant consent. 2 No right, duty or obligation shall arise between any child born as a result of the artificial insemination of a woman and any person whose gamete or gametes have been used for such artificial insemination and the blood relations of that persons, except where – (a) that person is the woman who gave birth to that child; or (b) that person is the husband or permanent same-sex life partner of such woman at the time of such artificial insemination." Importantly, the Constitutional Court went on to state: "comprehensive legislation regularising relationships between gay and lesbian persons is necessary. It is unsatisfactory for the courts to grant piecemeal relief to members of the gay and lesbian community as and when aspects of their relationship are found to be prejudiced by unconstitutional legislation. The legal consequences of marriage are many and complex. …Similarly, the mutual relationship between parent and child is complex, valuable and multi-faceted. There is also the relationship between children and members of their extended family which merits consideration. …" The public interest issue here is that, despite the clarity of the Constitutional Court in the J & B matter, uncertainty still exists in practice as to parental rights of same sex partners – whether life partners or married in terms of the Civil Union Act – who become parents via assisted reproduction. Are their parental rights automatic as per the J & B matter, or must they be secured via adoption? The ProBono.Org process: How does ProBono.Org work? We are open to approaches from individuals, community groups, and/or organisations. We are responsible for the initial consultations. Once the necessary preparatory work has been done, ProBono.Org can then make a determination as to whether the matter is indeed a public interest matter, whether it has merits, and whether the potential client is unable to afford commercial legal fees. If all these criteria are met, ProBono.Org then prepares a detailed brief for a legal practitioner (attorney or advocate) to take up the matter on a pro bono basis. Matters are matched with the stated expertise and/or interests of the various legal practitioners on our panel. The matching is important in that it ensures that legal practitioners deal with the kinds of matters that they have a passion for or an interest in, thereby further building their expertise in particular areas of law. Depending on the individual matter, as well as the relevant and applicable broader context, the relevant legal service could be any one, or a combination of the following: strategic legal thinking, advice, opinions, presentations for workshops/seminars, policy work, legislative drafting or litigation. In order to ensure a smooth hand-over of the matter, ProBono.Org attends the first consultation between the clients and the legal practitioner. Thereafter the matter is run in terms of the usual client-attorney relationship. Contact details: E-mail Odette: odette@probono-org.org or visit www.probono-org.org – Issued by Baby-ventures Baby-venture strives to provide its visitors with as much information as possible from various sources and gladly supports organisations such as ProBono.Org that seeks to promote the rights of all. Thus providing you the opportunity to source legal assistance at no cost – should it be of public interest – as in the case of GLBT parental rights. Send your comments to Lisa or visit www.baby-ventures.za.net Related features Same-sex Couples and Surrogacy in South Africa