Pretoria - The existence of a family unit, common household and being comfortable with one’s sexuality are some of the things which should be taken into account before a court gives the green light to surrogacy.
These came into the spotlight when a couple applied to become parents in terms of a surrogacy agreement.
Judge Ronel Tolmay turned down the application by a gay couple to confirm a surrogate motherhood agreement in the high court in Pretoria.
In terms of the law, couples who wish to conceive a child by way of using a surrogate mother must first place all the facts before a court.
This was to enable the court to establish whether it would be in the best interest of the (yet to be conceived) child to be raised in that household.
The judge said while the court should not be rigid, it was important to assess all the facts to ensure the new bundle of joy’s needs were placed first.
A couple, only referred to by their initials to safeguard their identity, said they had been in a relationship for 10 years.
Although they lived apart as they needed their own space, they spent most of the time together.
HN, a medical specialist, told the court he did not want his sexual orientation to become public as it could damage his practice. The pair asked a woman who had twins of her own to carry their baby, which would have been conceived by using the gametes of CJD ( the other partner) and the eggs of an unknown donor.
The judge commented that when she read the application it did not reveal any controversial issues. It was only when she perused the attaching report by the psychologist regarding the pair that red lights went on and she asked for further submissions.
She made it clear it was of no importance that they were homosexual. However, the fact that HN wanted to hide it could impact on the unborn child.
HN had told the psychologist that “he was at first not really given a choice about becoming a parent but that he was now totally on board”.
He was concerned about the reaction of his (conservative) patients and other medical practitioners getting to know that he was gay, and that there was an 18-year age difference between him and his lover.
In further submissions and after sensing that the judge was hesitant to confirm the surrogacy agreement, the couple stated that they were considering moving in together.
The judge remarked this was a “thinly concealed attempt” to try to convince her to confirm the agreement.
She added the pair clearly did not grasp the real concern of the court, which was that they did not live together and because HN wanted to be discreet about his sexuality.
“This means he will have to be discreet about the fact that he is the parent of a child born from surrogacy to him and his same-sex partner,” Judge Tolmay said.
She added the parties did not deal with what effect it would have on a child if one of them needed to hide “the very essence of who he is”.
“A lot of scenarios come to mind. I can see a little toddler excitedly running towards his father in public, shouting out 'daddy' Would the father pretend not to be the parent? How will this impact on the child? she asked.
“No one can judge a gay person who, because of persisting public prejudice, is reluctant to reveal his sexual orientation. However, the court must always place the rights of the child first.
“If HN in future finds it less daunting to be open about his sexual orientation, he can still approach the court and may obtain parental rights.”
She added that while the constitution recognised and respected many varied permutations of what a family consisted of, the interests of the child always came first.