Pride Edition: How do the laws of South Africa protect our community?

26 February 2022 was the date for our baby shower and, coincidentally, the date for Cape Town’s Pride Parade. My husband and I have been incredibly fortunate to have the opportunity to take the surrogacy route towards parenthood. In approximately 5 weeks’ time, we will have a child all our own. The journey to get to this point has been long and arduous but we are aware of how fortunate we are to be here. Naturally this whole process has led me to reflect on the people who came before us. The people who paved the way for us to have a child and feel secure in the protections of the law. The people who struggled to be recognized by their communities, governments, and the law as parents with rights to their children, spouses, and families. We do not have to worry about whether our names will be included on the birth certificate. We do not have to fear that doctors or nurses will exclude one or both of us on the basis of archaic sanguine related laws and/or gender specific roles.

That being said, there are still plenty of moments where we are people’s first. In these moments, we have taken the time to share our experience and educate those around us. I often think of the potential for our audience to be in contact with someone who may or may not have shared who they are because they are their community’s first non-heteronormative person. It is always our hope that exposing those around us to their first and sharing our story that it trickles into a place of acceptance and/or improves the understanding of others in their lives. It is in that vein that I take this opportunity to proudly share my experience of becoming a father with my husband in South Africa.

Fair warning: Unlike most of our blogs, a majority of this blog will consist of my personal experience. However, there are discussions on some legal protections and entitlements in South African family and labour laws in relation to surrogacy, sexual origination, and marriage.

History of Family Law

Family laws have long operated in a space that relied upon gender specific and heteronormative defaults. The “nuclear family” model has continued to dominate the minds of the public and the functions of the laws for approximately 100 years since its inception in the 1920s. Laws were modeled to support and protect this concept. It is only in the past 30 years that we have seen developments to include and protect family models outside of the “nuclear family”. In South Africa, the Constitution recognizes and respects many permutations of the family.

The Fertility Clinic

The first consultation we had with our fertility clinic was in 2017. It was primarily intended for us to gain more information on what would be necessary for us to proceed when we were ready. We quickly learned that the law required us to have a court order if we wanted to proceed with surrogacy. We needed to have an agreement drafted for our egg donor and for our future surrogate. The application to court would use these agreements as well as psychological evaluations (for everyone involved and their partners) as evidence to support our desired court order. I remember quite clearly my husband’s frustration that we needed to jump through so many hoops to have a child, but I explained that, from my limited knowledge of family law, South Africa has enshrined the rights of the child at every step. The intention behind these hurdles was always to protect everyone involved but ultimately to ensure that the future child was brought into a suitable home.

The Surrogate(s)

We were first introduced, by the fertility clinic, to two other surrogates before we were lucky enough to meet the kind, loving, strong, and life-changing individual that has carried our child for us. The first surrogate went quiet once she heard that we were a gay couple. The second surrogate seemed to accept that we were a gay couple, but her boyfriend was eventually not comfortable with the idea, and they chose not to proceed with assisting us with our surrogacy. I would be lying if I didn’t admit that these interactions affected me. In those moments I was transported back to a time where all people saw was my homosexuality and to them that was disgusting and unacceptable. Despite living my adult life proudly in the truth of who I am, moments like these can still take you to those places. It is one of the reasons it is so incredibly important for the legal framework of any justice system to expressly protect “sexual orientation” in its laws as section 9 of the South African Constitution does.  When laws include us by name and protect us without requiring further reinterpretation, the arch of history is in our favor and the minds of communities will expand to see us.

In a completely flip side to our first two introductions to surrogates, our surrogate (let’s call her “J” for confidentiality’s sake) sought out a homosexual couple to assist. We were introduced to her by the lawyer who assisted in our High Court application. She had previously assisted a heterosexual couple with having a child and chose to help a homosexual couple this time around. My husband and I started off our relationship with J by trying our best to show we would be suitable parents and attempting to express that our house is one full of love, ready for the addition of a child. J, being the incredibly empathetic and loving person that she is, could immediately see our worries and put them to rest. She saw us and wanted to be a part of our story. For this, and for so so many more things, we will be forever grateful to her. The laws in South Africa do not permit a surrogate to be remunerated for the surrogacy. This prohibition is intended to prevent individuals from falling into a transactional trap with their bodies. Therefore, individuals who choose to participate in surrogacy must really feel a calling to assist those who cannot have a child of their own. The laws are slightly more nuanced, but I will not proceed with a law lecture. This automatically sets the boundaries of the relationship from the start. It ensures that the individuals involved are protected from more nefarious intentions. J is that very special kind of person who feels called to help those create the families the desire despite them being biologically incapable of doing so.

The Hospital

Throughout this process we have met many different health practitioners. Many of whom had never dealt with a surrogacy or a surrogacy relationship with a homosexual couple before. These interactions have not been unpleasant, but they have revealed that norms in society have remained very much entrenched in the “nuclear family” and heteronormative defaults, specifically in this case, when it comes to health institutions. These firsts for health practitioners were “easier” to navigate because we have certain acknowledged rights in terms of our marriage. One thing that was clear throughout this process is that a “relatable” common ground was the institution of marriage. I could not help but imagine a time where homosexual couples could not be legally married were required to argue their reasons for being in the room.

The Workplace

I am forever grateful that I am employed at such a phenomenal company. While I happen to work at a company that is open minded to varied permutations of the family structure, not everyone is. Luckily, in 2020, the rights of the employee to access parental leave were expanded. The Basic Conditions of Employment Act has been amended to include adoptive and commissioning parental leave. Just as the Constitution specifically included us by name, parents creating their families outside of the “nuclear family” construct will not automatically be protected and seen in the eyes of the law. These are very important strides to creating a society that has the language for expanding their understanding of what it is to create a family and to protect the rights of everyone involved, including the child.

Thank you for taking the time to read through some of the stories of my journey to be a father as a gay man living in South Africa. I am well aware that these are not every non-heteronormative persons’ story to parenthood. However, it is my hope that you have learned something about the laws of South Africa and how they continue to evolve to include all of us. We do not live in this world in isolation, and it is through the expansion of our community and the ability to see others as ourselves that we will improve as a society. I walk this life with pride in who I am and in South Africa’s ever evolving legal landscape. If ever you or someone you know needs assistance and support, I hope that it is clear that Legalese is a company that wants to assist you.  

– Christian Tabor-Raeside

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