The High Court in Pretoria has denied a gay couple their application for surrogacy because one of the partners is still in the closet.
It is reported that Judge Ronel Tolmay ruled that it would not be in the best interest of the child born from the surrogacy to agree to the application.
The couple, identified only as CJD and HN, have been partners for ten years.
Although they do not live in the same home, they spend most of their time together.
The couple had asked the court to confirm an agreement for a woman to carry a child, conceived using CJD’s sperm and eggs from a donor, on their behalf.
The judge acknowledged that the two men are in a loving and stable relationship but was concerned that HN remained wary of disclosing his sexuality.
“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 would this impact the child,” Tolmay asked.
HN told the court he feared that being open about his sexuality would affect his medical practice.
Tolmay was quoted as saying: “Although one might be discreet about one’s private life, it was difficult to comprehend how you could be discreet about being a parent in a same-sex relationship. None of the reports or affidavits dealt with what the effect on the child would be where one of the parents needed to hide the very essence of who he was.”
In addition to one of the would-be parents’ reluctance to be open about his sexuality, the judge was also disturbed that the couple do not live together.
When they said they would consider moving in together, Tolmay responded by describing this as a “thinly concealed attempt” to try to convince her to approve the agreement.
“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,” insisted the judge.
She added that if in future HN is willing to be open about his sexuality, “he can still approach the court and may obtain parental rights”.
Under the Children’s Act, Act 38 of 2005, a surrogacy agreement can only be made legal in South Africa if it is confirmed by the High Court.