In a tale of cross-continental hopes and legal hiccups, a same-sex couple’s dream of returning to South Africa to start a family has hit a bump. The Gauteng High Court sitting in Pretoria recently denied their application to approve a surrogacy agreement, leaving their plans in limbo and the judge with more questions than answers.
The couple, a 38-year-old South African and his 27-year-old Polish husband, live and work in Zug, Switzerland, but claim to have plans to return to South Africa permanently to start a family. They had already found a willing surrogate, an experienced mother of two who had previously carried triplets for another couple. However, Judge Brenda Neukircher felt their situation was a little too uncertain for such a big step.
For starters, while they plan to live in South Africa, they still need to find jobs here. The Polish spouse also requires a spousal visa, which, at the time of the application, he had not applied for. The court was also concerned about their long-term plans, given that they currently rent a two-bedroom apartment in Switzerland, which they said was “large enough to adequately accommodate a child(ren), albeit more than one.” This, the judge believed, suggested they actually intended to settle in Switzerland and not South Africa as they claimed. Furthermore, their mention of UK-based guardians for their future children only raised more questions about their intended permanence in South Africa.
Judge Neukircher stressed that surrogacy laws prioritise the best interests of the child, which includes stability. She noted that the couple may have chosen South Africa because surrogacy is not recognised in Switzerland and adoption there is not an option for them. In her words: “On the facts before me, the only reason the applicants voice an intention to live in South Africa is
a) because surrogacy is not recognised in Switzerland; and
b) because adoption is not available to them in Switzerland; and
c) surrogacy is recognised in SA.”
While their dreams of parenthood are on pause for now, the couple may still find a way forward once they can prove that their South African future is more than just a hopeful plan. For now, the message is clear: when it comes to surrogacy, the courts want fewer maybes and more here’s-how.
You can read the full Ex Parte EW judgement here.
Written by Theo Tembo
* Here’s a reader question I responded to in the past regarding surrogacy:
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