Wilhelm Disbergen
On Tuesday the Pretoria High Court will hear a case that could have wide- reaching repercussions. Under the Child Care Act, Suzanne du Toit and her partner, Anne-Marie de Vos, are not allowed to share joint custody of the two adopted children they have raised for the past six years. Du Toit has brought a civil action against Minister of Justice and Constitutional Development Penuell Maduna and Minister of Social Development Zola Skweyiya on the grounds that the Act is unconstitutional because it discriminates according to sexual orientation.
The state will not be opposing the application, with both ministers saying they will abide by the court’s decision. The Act currently allows married persons, widows or widowers and unmarried persons to legally adopt children. De Vos is the children’s adoptive parent, and Du Toit, although an equal caregiver, has no legal rights to the children should anything happen to her partner.
The court case was sparked by a car accident in April 1999 involving De Vos. She escaped uninjured but the couple say they realised that had the accident had fatal consequences, the children would have been left parentless. This prompted them to start legal action to secure Du Toit’s rights as a co-adoptive parent.
Under the Act, Du Toit has no legal rights with regard to the children including signing any documents relating to their lives or even visiting them if they are in hospital. These restrictions do not apply to heterosexual couples who adopt. There are no statistics available on how many gay couples are raising children in South Africa. A 1992 study in the United States found that between three million and eight million gay and lesbian parents were raising an estimated six million to 14-million children. Facing a projected three million Aids orphans in South Africa in the next 10 years, adoption agencies have started to recruit and support non-traditional families wishing to adopt.