Current Affairs

A gay couple has been barred from adopting a child in South Africa

Josh Milton November 28, 2017
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Boy walking with two men in a park

(Photo: Creative Commons)

A court has refused to approve a surrogacy agreement between a gay couple and a woman – because one of the men is still in the closet.

The gay couple, who live in South Africa and have been identified only as CJD and HN, said they had been in a relationship for 10 years.

But Judge Ronel Tolmay of the North Gauteng High Court rejected the couple’s surrogacy application, as HN is not currently out of the closet and the two live apart from each other.

Members of the South African Lesbian, Gay, Bisexual and Transgender and Intersex (LGBTI) community chant slogans as they take part in the annual Gay Pride Parade, as part of the three-day Durban Pride Festival, on June 24, 2017 in Durban. / AFP PHOTO / RAJESH JANTILAL (Photo credit should read RAJESH JANTILAL/AFP/Getty Images)
South Africa Pride parade (Getty)

HN, a medical specialist, reportedly told the court he did not want his sexual orientation to become public as it could damage his practice.

This led the judge to suggest that him being in the closet could negatively impact the child, as HN may not acknowledge the child in public.

Tolmay said: “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 will this impact on the child?”

She continued: “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.

“If HN in future finds it less daunting to be open about his sexual orientation, he can still approach the court and may obtain parental rights.”


South Africa Pride parade (Getty)
South Africa Pride parade (Getty)

She also stated that she had rejected the application as the couple lives in separate homes.

Pretoria attorney and LGBT+ rights activist Coenue Kukkuk said he did not consider the judge’s ruling discriminatory.

“Judge Tolmay is one of the most progressive judges on the bench.

“As an advocate, she took on many cases for LGBTs when she still practised law,” he told MambaOnline.

“I can assure you that this judgement is in the best interest of the child.”


Surrogacy has been legal in South Africa since 2006, and the constitution guarantees equal protection for same-sex couples.

This was the same year the country legalised same-sex marriage, but there are continued calls for wider education on the topic.

Last year, a South African gay couple became the biological parents of triplets via surrogacy.

More: Africa, Africa, couple, court, Gay, gay surrogacy, ruling, Same-sex, same-sex couple, South Africa, South Africa, surrogacy

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