Page:Fourie v Minister of Home Affairs (SCA).djvu/94

Rh lesbians are certainly individually permitted to adopt children under the provisions of s 17(b) of the Child Care Act 74 of 1983 and nothing prevents a gay couple or a lesbian couple, one of whom has so adopted a child, from treating such child in all ways, other that strictly legally, as their child. They can certainly love, care and provide for the child as though it was their joint child.

[51] From a legal and constitutional point of view procreative potential is not a defining characteristic of conjugal relationships. Such a view would be deeply demeaning to couples (whether married or not) who, for whatever reason, are incapable of procreating when they commence such relationship or become so at any time thereafter. It is likewise demeaning to couples who commence such a relationship at an age when they no longer have the desire for sexual relations. It is demeaning to adoptive parents to suggest that their family is any less a family and any less entitled to respect and concern than a family with procreated children. I would even hold it to be demeaning of a couple who voluntarily decide not to have children or sexual relations with one another; this being a decision entirely within their protected sphere of freedom and privacy.

[52] I find support for this view in the following conclusions of L'Heureux-Dubé J (with whom Cory J and McLachlin J concurred) in Mossop [Canada (Attorney-General) v Mossop (1993) 100 DLR (4th) 658]: “The argument is that procreation is somehow necessary to the concept of family and that same-sex couples cannot be families as they are incapable of procreation. Though there is undeniable value in procreation, the tribunal could not have accepted that the capacity to procreate limits the boundaries of