A court has turned down a surrogacy agreement application by a same-sex couple.
A same-sex couple who are at present working in Switzerland, but said they are hoping to soon return to South Africa to start a family here, had their hopes dashed by the Gauteng High Court, Pretoria.
The court turned down their application to endorse a surrogacy motherhood agreement they wanted to conclude with a woman who agreed to carry the child for them.
The couple turned to court to get the go-ahead, but Judge Brenda Neukircher said at this stage, their futures seemed too uncertain for them to bring a child into this world, which they said they planned to raise here.
The couple were married in 2023 in Switzerland but have been in a committed relationship for six years.
The first applicant is a South African, while his husband is a Polish immigrant. He told the court that both of them plan on living in South Africa but they still have to find work here.
The court was also told that the second applicant, not being a South African, also had to first apply for a spousal visa to enable him to live here.
The couple stated that they had earmarked a prospective surrogate mother who has two children herself. She has also been a surrogate mother in the past to another couple, where she gave birth to triplets.
Judge Neukircher commented that there is a “treasure trove” of information that the married couple did not supply to the court.
She said while they indicated that they are planning to return to South Africa and buy a farm here to raise their future children, nothing is certain at this point.
The judge said the experts’ reports handed to the court raised even more questions as to where the couple will live once the child is born and about their support system here.
The couple said they have already earmarked guardians in the United Kingdom for their prospective children if something happened to them.
But the judge said that means that a child born and raised here would suddenly be uprooted to the UK if anything happened to the applicants.
The judge pointed out that the law is very prescriptive when it comes to surrogacy agreements, as the best interests of the child must always be taken into account.
There are also other important requirements, which include that the applicants in these cases must prove that they are going to settle permanently in the area that falls under the court’s jurisdiction.
Judge Neukircher said the fact that the couple mentioned to the court that they are now living in a two-bedroom apartment in Switzerland, which is large enough to raise children in, raises red flags about their intention to return to this country.
The couple said they are only renting the apartment, but the judge said millions of people across the globe rent apartments. This does not mean that South Africa is their permanent home.
Judge Neukircher said she suspects that the couple is planning on staying in Switzerland and the only reason they applied for the surrogacy agreement before the court in Pretoria is that surrogacy is not recognised in Switzerland, and because adoption is not possible for them in that country.
zelda.venter@inl.co.za
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