Page:Fourie v Minister of Home Affairs (SCA).djvu/92

Rh If society proceeds similarly to recognize marriages between same-sex couples who cannot procreate, it could be perceived as an abandonment of this claim, and might result in the mistaken view that civil marriage has little to do with procreation: just as the potential of procreation would not be necessary for a marriage to be valid, marriage would not be necessary for optimal procreation and child rearing to occur.’

In my view it is appropriate to consider what importance or relevance is to be attached in the present context to the fact that the parties to a same-sex union are incapable of procreating ‘naturally’ with each other.

As was pointed out in the Halpern case when it was before the Ontario Court of Appeal: ‘While it is true that, due to biological realities only opposite-sex couples can “naturally” procreate, same-sex couples can choose to have children by other means, such as adoption, surrogacy and donor insemination.’ This fact in itself may well constitute sufficient refutation of the arguments set out in Cordy J's judgment in the Goodridge case which I have quoted above.

It is a controversial question in our law whether sterility (an inability to procreate) not accompanied by impotence (an inability to have intercourse) is a sufficient ground for the annulment of a