Something about the application troubled the judge. She needed more clarification; just what was going on here, she wanted to know.
The mid-August application before Judge Ronel Tolmay in the Gauteng High Court (Pretoria) was not uncommon: a surrogate motherhood agreement seeking official court approval. Four people were named in the application: a gay couple CJD and HN, and a heterosexual couple, GLJ and her partner. CJD would provide the sperm, an anonymous donor the egg, and GLJ would carry the baby for CJD and HN who would become equal parents of the baby once it was born.
SA law does not permit discrimination based on sexual orientation, and in her final decision, handed down earlier this month, Tolmay stressed that the fact that the prospective parents were gay men was immaterial.
What concerned her, however, was the position of HN. He appeared uncertain about whether and when he would come out about his sexual orientation and, as a result, he wanted to be 'discreet' about being the new child's father.
Would it be in the best interests of the new child to live in a situation where one parent was ambivalent about public acknowledgment of the child as his?
The main application raised nothing controversial, but when the judge read the psychologist's report, she found a number of issues that concerned her.
The two men had been together for 10 years, in what was described in the first psychologist's report to be a 'loving and stable relationship'. They were both financially independent, but they did not live together. While the younger partner dreamed of being a father, the other man was 'more hesitant'. He told the psychologist he 'was not really given a choice about becoming a parent' though now he was 'totally on board' with the plan.
The older man said he does not hide the fact that he is gay, but that he 'needs to be discreet about his sexual orientation' as he is concerned about the impact that becoming a parent in a homosexual relationship will have on his practice as a medical specialist. The conservative views of patients and other members of the profession concerned him, while rumours in the past that he was gay impacted negatively on his practice. People also 'reacted' to the 18-year age gap between him and his partner.
Tolmay asked the Centre for Child Care for its input in the matter and for a further psychologist's interview specifically dealing with the court's concerns. In that report, the psychologist told the judge the two were 'now considering moving in together', but the judge said this did not convince her as it seemed 'a thinly concealed attempt' at persuading the court to approve the surrogacy agreement.
She said the parties still did not grasp the real concern of the court: '(they) do not share a common household and one of the parties deems it necessary to be "discreet" about his sexual orientation.'
This in turn meant he would have to be discreet about being the parent of the planned child. Perhaps someone could be discreet about their private life, she said, but it was difficult to understand how one could be discreet about 'being a parent in a same-sex relationship'.
'Glaringly absent' from the report was how all of this would impact on the best interests of a child and the impact where 'one of the parents needs to hide the very essence of who he is'.
Tolmay imagined a scene in which 'a little toddler excitedly' ran towards his father in a public place, 'shouting out "Daddy".' Would his father pretend not to be the child's parent? How would that impact on the child? Also completely absent from the report was any explanation of how CJD and HN intended to deal with their parental roles as the child grew up and went to school.
She said no one could 'judge' a gay person who as a result of 'persisting public prejudice' was reluctant to reveal his or her sexual orientation, and it was a 'sad indictment' that HN was placed in such a position. But the court had to put the rights and interests of children first, 'even ... where the rights of the prospective parents may be compromised'.
Parties involved in a surrogacy application had to act 'with the utmost good faith', and she questioned why no mention was made in the initial affidavits of their living arrangements, the initial attitude of HN to having a child and his reluctance to make his sexual orientation public.
The judge then laid down guidelines for what should be included in such applications in future: whether the applicants function as a family unit, whether they are comfortable with society regarding them as such, whether the couple is living together, and if not, why this would not impact on a child.
Tolmay said she believed that under the Children's Act HN could have been 'granted parental rights and obligations'. But while the court should allow a 'wide interpretation' of what a 'permanent relationship' meant, it would still have to decide whether the structure of a particular relationship would support the raising of a family.
One suggestion by their legal team was that the surrogacy contract should be confirmed in relation to the younger man only. But the judge said she could not do so: the agreement was signed by all four parties and the court could not simply vary an agreement entered into between them.
If CJD wanted to bring a separate application for a surrogacy agreement with him as a single parent, the court might well want further information about his suitability as a single parent. In that case, and if HN were to find it less daunting in the future to be open about his sexual orientation, HN could still approach the court to ask for parental rights and responsibilities.
In the end, the judge refused to approve the contract saying that though the Constitution acknowledged there were many and varied permutations of what constituted a family, the circumstances of this particular case did not allow her to confirm the agreement.