Broody gay couple may use a surrogate

The Pretoria High Court has paved the way for a surrogate mother to carry a child for a gay couple.

Judge Ronel Tolmay said in her judgment on Tuesday that the couple – two men – had made out a proper case for the relief they sought.

Judge Tolmay and Judge Jody Kollapen heard an application by the couple in August. In it, the couple sought permission for a surrogate mother to carry their child.

The couple have been in a relationship for eight years and were married last year. They were introduced to the surrogate mother by an agency.

The court invited the Centre for Child Law and the Society of Advocates to give their input on how the courts should deal with the question of surrogacy.

Some of the issues that the court asked them to give their views on were:

- The approach that should be followed when the genetic material used was not that of the parties.

- The approach, if any, that should be followed when same-sex couples applied for a surrogacy agreement to be made an order of court.

- The factors that should be considered to determine the best interest of the child.

Judge Tolmay said the formal requirements found in Section 292 of the Children’s Act 38 of 2006 had been met.

“We are satisfied that both the commissioning parents as well as the surrogate mother are suitable persons as contemplated in the act, both to accept parenthood as well as to act as surrogate mother,” the judge said.

“We are satisfied that arrangements for the care and welfare of the child to be born, including stability of the home environment and the provision for the child’s needs in the event of the commissioning parents’ divorce or separation, have been more than adequately provided for.”

The judge said although one might be tempted to think that the problem of surrogacy was new, it seemed that since biblical times people who could not have children had opted for forms of surrogacy.

“For example, men were exhorted to impregnate their widowed sisters-in-law to secure heirs for their dead brothers,” Judge Tolmay said.

“There are also instances where husbands whose wives were infertile engaged in sexual relationships with a family servant to provide a child for them.

“Informal surrogacy, arrived at more often by private agreement between family members or people known to each other, was and continues to be practised in many societies.”

Judge Tolmay said surrogacy had not been recognised in South Africa before the enactment of the legislation, although there had been a number of reported cases of informal surrogacy.

The act provides a mechanism for many who are unable to bear children and for whom informal surrogacy is not an option.

“This has understandably resulted in a growing number of applications in this division seeking the confirmation of the court of surrogacy agreements,” the judge remarked.

Judge Tolmay said that while agencies that introduced potential commissioning parents to potential surrogate mothers played an important facilitative role, there was, however, concern that the involvement of agencies in the introduction of surrogate mothers could easily lead to abuse.

“One would be naive not to see how it is possible to develop to a point where ‘a womb for hire’ could become de facto part of surrogacy practice.

“From an overview of international practice it becomes clear that, particularly in countries such as ours with deep socio-economic disparities and the prevalence of poverty, there is a possibility of abuse of underprivileged women.” - Pretoria News