About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2003
>>
[2003] ZACC 3
|
|
J and Another v Director General, Department of Home Affairs and Others (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463 ; 2003 (5) SA 621 (CC) (28 March 2003)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 46/02
J First Applicant
B Second Applicant
versus
DIRECTOR
GENERAL: DEPARTMENT
OF HOME AFFAIRS First Respondent
MINISTER OF HOME
AFFAIRS Second Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third
Respondent
Heard on : 27 February 2003
Decided on : 28 March
2003
JUDGMENT
GOLDSTONE J:
Introduction
[1]
The Children’s Status
Act of 1987
[1]
(the Status Act) deals
with, amongst other matters, the status of children conceived by artificial
insemination. The challenged
provisions apply to children so conceived within
the context of a heterosexual marriage.
[2]
Since 1995, the two
applicants have been partners in a same-sex life partnership. In August 2001
the second applicant gave birth
to twins, a girl and a boy. They were conceived
by artificial insemination. The male sperm was obtained from an anonymous
donor.
The female ova were obtained from the first applicant. In order to
protect the identity of the twins, the applicants have been
referred to in these
proceedings only as “J” and
“B”.
[3]
It is the wish of both
applicants that they be registered and recognised as the parents of the twins.
There was no legal impediment
with regard to the second applicant, as the
“birth-mother”, being registered as the mother of the children under
the
regulations made in terms of section 32 of the Births and Deaths
Registration Act of 1992
[2]
(the
regulations). However, the regulations and the forms annexed to them make
provision for the registration only of one male and
one female
parent.
[4]
When the first applicant was
unsuccessful in her attempt to be registered as a parent of the children, the
applicants approached the
Durban High Court for appropriate constitutional
relief. They sought an order requiring the first respondent (the Director
General
in the Department of Home Affairs) to issue to both of the applicants
birth certificates in respect of each of the children and to
register their
births reflecting the second applicant as their mother and the first applicant
as their parent. They also sought
an order requiring the second respondent to
amend the form annexed to the regulations to allow for the recordal of a person
in the
position of the first applicant as the parent of the child, i.e. where
such person is the donor of a gamete used in the conception
of the
child.
[5]
The applicants also sought
to have section 5 of the Status Act declared constitutionally invalid on the
grounds that it was inconsistent
with rights entrenched in the Bill of Rights.
Section 5 reads as follows:
“(1) (a) Whenever the gamete or gametes of any person other than a married
woman or her husband have been used with the consent
of both that woman and her
husband 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 as if the gamete
or gametes of that woman or her husband were used for such artificial
insemination.
(b) For the purposes of paragraph (a) it shall be presumed, until the contrary
is proved, that both the married woman and her husband
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
person, except where
–
(a) that person is the woman who gave birth to that child;
or
(b) that person is the husband of such a woman at the time of such artificial
insemination.
(3) For the purposes of this section –
‘artificial insemination’, in relation to a woman
–
(a) means the introduction by other than natural means of a male gamete or
gametes into the internal reproductive organs of that
woman; or
(b) means the placing of the product of a union of a male and a female gamete or
gametes which have been brought together outside
the human body in the womb of
that woman,
for the purpose of human reproduction;
‘gamete’ means either of the two generative cells essential for
human reproduction.”
[6]
At the request of the
applicants, the High Court appointed Advocate A.A. Gabriel as the
curatrix ad
litem
to represent the interests of the children. She prepared a full and
helpful report for the High Court. This Court also had the
benefit of that
report. We are additionally grateful to Advocate Gabriel for the oral
submissions she made in this Court.
[7]
The High Court made the
following
order:
[3]
“1 THAT the first respondent is ordered
to:
(a)
issue to the
applicants a birth certificate for each of the minor children . . . ;
and
(b)
register the birth of each of the said
minor children in the population register
reflecting:
(i) the second applicant as their mother;
(ii) the first applicant as their parent;
(iii) their surname as being the surname of the second applicant.
2 THAT the second respondent is ordered to cause annexure 1A of the Regulations
in terms of
section 32
of the
Births and Deaths Registration Act 51 of 1992
to
be amended so as to allow for the recordal of a non-anonymous donor of a gamete
used in artificial insemination as contemplated
in
section 5
of the
Children’s Status Act 82 of 1987 from which a child is born, as a parent
of that child.
3 THAT it is declared that for all relevant purposes the first applicant is a
natural parent and guardian of the aforesaid minor
children.
4 THAT in section 5 of the Children’s Status Act 82 of 1987 the word
“married” be struck out wherever it appears
as being
constitutionally invalid and that the section be read as including the words
“or permanent same-sex life partner”
after the word
“husband” wherever it appears, save that the relief in this
paragraph is suspended pending confirmation
thereof by the Constitutional
Court.
5 THAT the respondents, jointly and severally, pay the costs of the
application.
6 THAT the rule
nisi
in the first order prayed be
confirmed.”
[8]
The applicants have
approached this Court for confirmation of the order relating to section 5 of the
Status Act. This application
is made under the provisions of section 172(2)(a)
of the Constitution which, insofar as now relevant, provides
that:
“The Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity
of an Act of Parliament
. . . but an order of constitutional invalidity has no force unless it is
confirmed by the Constitutional
Court.”
The relief granted in paragraph 2 of the order of Magid J
ordering the second respondent to cause annexure 1A of the regulations to
be
amended is not an issue before us. The extent to which the relief granted in
respect of the regulations is appropriate in the
light of the relief granted in
terms of section 5 is also not an issue in this appeal. Those issues were not
raised in argument
in this Court, and I express no opinion on their
constitutionality or appropriateness.
The judgment of the High
Court
[9]
In the High Court, Magid J
held that the provisions of section 5 of the Status Act constitute
discrimination on the ground of marital
status “and probably sexual
orientation”. As far as the children are concerned, the learned Judge
held that the statutory
provision amounts to discrimination on the listed
grounds of social origin and birth. He went on to hold that the presumption of
unfair discrimination created by section 9(5) of the
Constitution
[4]
applies. Because the
government did not seek to justify the discrimination under section 36 of the
Constitution,
[5]
Magid J held the
section to be constitutionally invalid.
[10]
With regard to appropriate
relief, Magid J found this to be a proper case for both striking out and reading
in to cure the unconstitutionality
of section 5. He struck out the word
“married” where it appears in subsections (1)(a) and (b). And he
read in the words
“or permanent same-sex life partner” after the
word “husband” where it appears in subsections (1)(a) and
(b) and
(2)(b) of section 5. Treated in this way, subsections (1) and (2) of section 5
read as follows:
“(1) (a) Whenever the gamete or gametes of any person other than a
married
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
as if the gamete
or gametes of that woman or her husband
or permanent same-sex life
partner
were used for such artificial insemination.
(b) For the purposes of paragraph (a) it shall be presumed, until the contrary
is proved, that both the
married
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
person, 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
a woman at the time of such artificial
insemination.”
The
attitude of the respondents
[11]
The respondents are not
opposing the confirmation of the order of constitutional invalidity granted by
Magid J with regard to section
5 of the Status Act. They have not appealed
against the orders he made relating to the regulations. On behalf of the
respondents
it was submitted that:
(a) in order not to discriminate unfairly against unmarried heterosexual
couples, the words “or permanent life partner”
should be read into
section 5 of the Status Act rather than the words “or permanent same-sex
life partner”;
(b) the order of invalidity should be suspended for one year in order to allow
the legislature to amend the statute.
The issues in this
Court
[12]
The issues in this Court
are thus the following:
(a) whether this Court should confirm the order of invalidity, striking out and
reading in made by the High Court;
(b) whether the terms of the order should also include unmarried heterosexual
permanent life partners;
(c) whether the order of suspension sought by the respondents should be
granted.
Confirmation of the order
[13]
The provisions of section 5
of the Status Act do not permit the first applicant to become a legitimate
parent of the children. This
unfairly discriminates between married persons and
the applicants as permanent same-sex life partners. The section is accordingly
inconsistent with section 9(3) of the
Constitution
[6]
which prohibits the
state from discriminating directly or indirectly against anyone on the ground of
sexual orientation.
[14]
An analogous
differentiation was held by this Court to be unconstitutional in
Du Toit and
Another v Minister of Welfare and Population Development and
Others.
[7]
The Child Care
Act
[8]
(the Child Care Act) precluded
partners in a permanent same-sex life partnership from adopting children.
Skweyiya AJ pointed out
that “the applicants’ status as unmarried
persons which currently precludes them from joint adoption of the siblings
is
inextricably linked to their sexual
orientation.”
[9]
The same
applies in the present case with regard to the inability of the first applicant
to be recognised as a parent and legal
guardian of the children. It is unfairly
discriminatory to deprive the first applicant of such recognition. In my
opinion, the
provisions of section 5 of the Status Act are clearly in conflict
with the provisions of section 9(3) of the
Constitution.
[15]
Because the respondents did
not attempt to justify the limitation of the applicants’ rights in section
5 of the Status Act,
Magid J did not embark upon a limitations inquiry under the
provisions of section 36 of the
Constitution.
[10]
As Skweyiya AJ
pointed out in the
Du Toit
case
[11]
the failure by the
government to support the limitation of a right contained in the Bill of Rights
does not relieve a Court from
considering whether such a limitation is
justifiable.
[12]
In my opinion it
cannot be justified. An effect of section 5 of the Status Act is to legitimate
children born to married couples
in consequence of artificial insemination. It
does not do so in respect of permanent same-sex life partners. In the
Du
Toit
case,
[13]
Skweyiya AJ said
the following with regard to the impugned provisions of the Child Care
Act:
“In this regard, they are not the only legislative provisions which do not
acknowledge the legitimacy and value of same-sex
permanent life partnerships.
It is a matter of our history (and that of many countries) that these
relationships have been the subject
of unfair discrimination in the past.
However, our Constitution requires that unfairly discriminatory treatment of
such relationships
cease. It is significant that there have been a number of
recent cases, statutes and government consultation documents in South
Africa
which broaden the scope of concepts such as “family”,
“spouse” and “domestic relationship”,
to include
same-sex life partners. These legislative and jurisprudential developments
indicate the growing recognition afforded
to same-sex relationships.”
[Footnotes omitted]
The same considerations apply in the present case. Given that
section 5 is unconstitutional on these grounds, it is not necessary
to consider
the other grounds raised by the applicants.
[16]
The finding by the High
Court that the impugned provisions of the Status Act are unconstitutional must
be upheld. As far as the remedy
is concerned, I am of the view that the
approach of Magid J is fully in accord with that adopted by Ackermann J on
behalf of a unanimous
court in
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and
Others
.
[14]
It was not
suggested to the contrary on behalf of the respondents. It is clear from the
report of the
curatrix ad litem
, that the order made by Magid J also
meets the interests of the two children of the applicants in this case as
section 28(2) of the
Constitution
requires.
[15]
[17]
During argument the
Court’s attention was drawn to the concluding words of section 5(1)(a) of
the Status Act. Prior to any
order requiring words to be read into the statute,
the clause reads as follows:
“. . . as if the gamete or gametes of that woman or her husband were used
for such artificial insemination.”
The effect of these words in section 5(1)(a) is merely
clarificatory. They make plain that if a husband consents to the process of
artificial insemination, it does not matter whose gametes are used to conceive
the child, the child will nevertheless be the legitimate
child of the woman
bearing the child and her husband. The applicants propose that the words
“or permanent same-sex life partner”
be read in after the word
“husband” in this portion of this section as elsewhere. If such
words were to be introduced
into the subsection, it would read as follows:
“. . . as if the gamete or gametes of that woman or her husband or her
permanent same-sex life partner were used for such artificial
insemination.”
The deeming provision has reference to the legitimacy of a child
born to a married couple. A child born by artificial insemination
is deemed to
be legitimate in a situation where the common law would not recognise such
legitimacy. In the case of a child born
by artificial insemination in the
context of a permanent same-sex life partnership, the deeming provision is
inappropriate as a child
could not be conceived using the gametes only of the
same-sex life partners. Furthermore, the legitimacy of such a child at common
law could not arise.
[18]
This Court set out the
principles that should be followed when reading words into a statute in the case
of
National Council for Gay and Lesbian Equality and Others v Minister of
Home Affairs and Others
.
[16]
One of those principles is that the Court should interfere with the laws adopted
by the legislature as little as possible. However
in this case, were words to
be read into the concluding words of section 5(1)(a) as the applicants proposed,
the effect would be
inappropriate; as mentioned in the preceding paragraph, it
would incorrectly assume the common law legitimacy of a child of same-sex
partners. It seems to me that given that the concluding words of section
5(1)(a) play no substantive role in themselves, but merely
repeat or clarify the
earlier substantive portions of the subsection, it would be proper for this
Court to sever the concluding words.
In so doing, I acknowledge that at times
where either the tools of severance or reading in are employed to achieve a
constitutional
result, a consequential severance may be required to ensure that
the statutory provision is clear and achieves its purpose. In such
circumstances, the Court will always be astute to ensure, on the one hand, that
the laws adopted by the legislature are interfered
with as little as possible,
and on the other, that a constitutional result is
achieved.
Should the order include
permanent heterosexual life partners?
[19]
The submission on behalf of
the respondents is that, in the form it was made by Magid J, the order unfairly
discriminates against
permanent heterosexual life partners. The provisions of
section 5 of the Status Act would have the same consequences for such partners
as they have for same-sex partners. It was submitted that the words
“permanent life partner” should be read into section
5 rather than
the words “permanent same-sex life partner”. A similar submission
was made in this Court in
Satchwell v President of the Republic of South
Africa and Another
.
[17]
It was
disposed of as follows by Madala J:
“This Court is not at large to grant any relief under its power to grant
‘appropriate relief’ – it cannot
import matters that are
remote to the case in question – otherwise it will be intruding too far
into the legislative sphere.
The intended accommodation of heterosexuals cannot
be introduced via the backdoor into this case. It was not properly before us,
nor did we hear argument on the complexities
involved.”
[18]
The same applies in the present case and the respondents’
submission must be rejected.
Should the order be suspended?
[20]
The respondents’
further submission was that this Court should suspend the confirmation of the
whole order of constitutional
invalidity for a period of one year to enable
Parliament to pass legislation to cure the constitutional deficiencies in
section 5
of the Status Act. This submission was based upon the
“wide-ranging” issues involved and the current investigation of
these and related issues by the South African Law Reform
Commission.
[19]
In my opinion this
submission is also without merit for the reasons which
follow.
[21]
The suspension of an order
is appropriate in cases where the striking down of a statute would, in the
absence of a suspension order,
leave a lacuna. In such cases, the Court must
consider, on the one hand, the interests of the successful litigant in obtaining
immediate
constitutional relief and, on the other, the potential disruption of
the administration of justice that would be caused by the lacuna.
If the Court
is persuaded upon a consideration of these conflicting concerns that it is
appropriate to suspend the order made, it
will do so in order to afford the
legislature an opportunity “to correct the
defect”.
[20]
It will also
seek to tailor relief in the interim to provide temporary constitutional relief
to successful litigants.
[22]
Where the appropriate
remedy is reading in words in order to cure the constitutional invalidity of a
statutory provision, it is difficult
to think of an occasion when it would be
appropriate to suspend such an order. This is so because the effect of reading
in is to
cure a constitutional deficiency in the impugned legislation. If
reading in words does not cure the unconstitutionality, it will
ordinarily not
be an appropriate remedy. Where the unconstitutionality is cured, there would
usually be no reason to deprive the
applicants or any other persons of the
benefit of such an order by suspending it. Moreover the legislature need not be
given an
opportunity to remedy the defect, which has by definition been
cured.
[21]
In the present case, the
effect of the order is not to leave a lacuna but to remedy the constitutional
defect complained of by the
applicants by a combination of reading in and
striking down. Under the circumstances, it is not an appropriate case for our
order
to be suspended.
[23]
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 relationships are found to be
prejudiced by unconstitutional legislation. The legal consequences of marriage
are many and complex. This
Court
[22]
has previously referred to
a South African common law marriage as creating “a
consortium omnis
vitae
” which was described in the following passage from
Peter v
Minister of Law and Order
[23]
as
“. . . an abstraction comprising the totality of a number of rights,
duties and advantages accruing to spouses of a marriage
. . . . These embrace
intangibles, such as loyalty and sympathetic care and affection, concern . . .
as well as the more material
needs of life, such as physical care, financial
support, the rendering of services in the running of the common household or in
a
support-generating business . . .”.
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.
[24]
Where a statute is
challenged on the ground that it is under inclusive and for that reason
discriminates unfairly against gays and
lesbians on the grounds of their sexual
orientation, difficult questions may arise in relation to the determination of
the particular
relationships entitled to protection, and the appropriate relief.
The precise parameters of relationships entitled to constitutional
protection
will often depend on the purpose of the statute. For instance in
Satchwell
[24]
where the issue
was pensions and related benefits, a mutual duty of support was an essential
element. In the present case, where
the rights of children are implicated, this
was not an essential element, though it might have been an appropriate
one.
[25]
The state is required by
section 7(2) of the Constitution to “respect, protect, promote and fulfil
the rights in the Bill of
Rights.” And, by section 8(1) of the
Constitution, “[t]he Bill of Rights . . . binds the legislature, the
executive,
the judiciary and all organs of state.” The executive and
legislature are therefore obliged to deal comprehensively and timeously
with
existing unfair discrimination against gays and
lesbians.
[25]
Moreover, courts
considering unfair discrimination cases of this sort need carefully to evaluate
the context and nature of the discrimination
and, where unfair discrimination is
found, remedies must be carefully tailored to that
context.
[26]
It is not appropriate for
courts to determine the details of the relationship between partners to same-sex
(or for that matter heterosexual)
partnerships. So, too, it is not for the
courts to work out the details of the relationship between any such partners and
their
children. In the present case, for example, this Court has heard no
argument and has not considered the respective duties which
might arise between
the applicants in respect of the children. Those are matters for the
legislature to consider when drafting comprehensive
legislation to regulate such
relationships. I would also add that the nature and detail of remedies which
the courts fashion in
cases of unfair discrimination do not bind the
legislature. It is at large to fashion what it considers to be appropriate
consequences
of personal relationships in any way consistent with the provisions
of the Constitution.
Costs
[27]
There is no reason to
deprive the applicants of the costs of the confirmation proceedings. They were
successful in the High Court
and had no option but to approach this Court for
confirmation of the order made by it.
The
Order
[28]
The following order is
made:
(a) Paragraph 4 of the order of the High Court is set aside.
(b) (i) Section 5 of the Children’s Status Act 82 of 1987 is declared to
be inconsistent with the Constitution to the extent
that the word
“married” appears in that section and to the extent that the section
does not include the words “or
permanent same-sex life partner”
after the word “husband” wherever it appears in that
section.
(ii) In section 5 of the Children’s Status Act 82
of 1987 the word “married” is struck out wherever it appears
in
that section.
(iii) In section 5 of the Children’s Status Act 82 of 1987 the words
“or permanent same-sex life partner” are
read in after the word
“husband” wherever it appears in that section.
(iv)
The words in subsection 5(1)(a) “as if the gamete or gametes of that
woman or her husband were used for such artificial
insemination” are
struck out.
(c) The respondents are ordered, jointly and severally, to pay the costs of the
confirmation proceedings including the costs of the
curatrix ad
litem
.
Chaskalson CJ, Langa DCJ, Ackermann J, Madala J, Mokgoro J, Moseneke J,
O’Regan J and Yacoob J concur in the judgment of Goldstone
J.
For the Applicants: A.M. Stewart instructed by the Legal Resources
Centre,
Durban.
For the Respondents: T.G.
Madonsela instructed by the State Attorney, Durban.
Curatrix ad
Litem: A.A. Gabriel.
[1]
Act 82 of 1987.
[2]
Act 51 of 1992.
[3]
The judgment of Magid J was
delivered on 31 October 2002 and is as yet unreported.
[4]
Section 9(5) provides that:
“Discrimination on one or more of the grounds listed in subsection (3) is
unfair unless it is established that the discrimination
is
fair.”
[5]
Section 36 provides that:
“(1) The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors,
including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the
purpose.
(2) Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in
the Bill of
Rights.”
[6]
Section 9(3) provides that:
“The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender,
sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language and
birth.”
[7]
[2002] ZACC 20
;
2003
(2) SA 198
(CC);
2002 (10) BCLR 1006
(CC).
[8]
Act 74 of 1983.
[9]
Para 26.
[10]
Above n 5.
[11]
Above n 7.
[12]
Id para 31 and the cases
cited in n 32 of that judgment.
[13]
Above n 7, para 32.
[14]
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1)
BCLR 39
(CC), paras 61 – 88.
[15]
Section 28(2) provides
that:
“A child’s best interests are of paramount importance in every
matter concerning the
child.”
[16]
Above n 14, paras 62 – 76.
[17]
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9)
BCLR 986
(CC).
[18]
Id para 33. See too
National Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
, above n 14, para 87.
[19]
Project Number 118.
[20]
Section 172(1)(b)(ii)
provides that:
“(1) When deciding a constitutional matter within its power, a court
–
. . .
(b) may make any order that is just and equitable, including
–
. . .
(ii) an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to
correct the
defect.”
[21]
As mentioned in para 26 below the legislature is free thereafter to amend such a
statutory provision in any way consistent with the
Constitution.
[22]
National Coalition for
Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
,
above n 14, para 46.
[23]
1990 (4) SA 6
(E) at
9G-H.
[24]
Above n 17.
[25]
See the remarks of Madala J
in
Satchwell v President of the Republic of South Africa and Another
,
above n 17, para 29, and of Skweyiya AJ in the passage from the
Du Toit
judgment quoted in para 15 above. Numerous European countries have passed
comprehensive legislation granting legal recognition to
same-sex partnerships.
Denmark was the pioneer in this area, passing the first law permitting same-sex
couples to legally register
their partnerships in 1989, Registered Partnership
Act, 7 June 1989, no. 372. Several other Scandinavian countries have followed
suit and passed legislation based on Denmark’s example. See Registered
Partnership Act, 30 April 1993, no. 40 (Norway); Registered
Partnership Act, 23
June 1994, SFS 1994:1117 (Sweden); Confirmed Cohabitation Act, 12 June 1996, no.
87 (Iceland). More recently,
Germany joined this trend passing the Law of 16
February 2001 on Ending Discrimination Against Same-Sex Associations: Life
Partnerships,
[2001] 9
Bundesgesetzblatt
266. In addition to
establishing a separate legal category for same-sex partnerships, as these
countries have done, Belgium has
passed legislation offering the status of legal
marriage to same-sex couples: Act of 13 February 2003,
Moniteur Belge
,
Ed. 3 at 9880. The Netherlands has achieved the same result in a series of
statutes: Act of 21 December 2000 authorising marriage
for same-sex partners,
Staatsblad
2001, no. 9; Act of 21 December 2000 on adoption by same-sex
partners,
Staatsblad
2001, no. 10; Act of 13 December 2000 on various
matters including the further equality between marriage and partnership
registration,
Staatsblad
2001, no. 11; Act of 8 March 2001 adjusting
various other laws as a result of authorising marriage and adoption,
Staatsblad
2001, no. 128.