Abstract
The research investigates the historical legal recognition of a marginalised group in South Africa, namely the queer community and their access to surrogacy. It further gives a historical background of these aspects within the twenty-seven years of South Africa’s democracy.
Section 9 of the Constitution of the Republic of South Africa of 1996 is so progressive that in subsection 5, it enjoins the legislature to enact legislation that would give effect to the right to equality which forms the cornerstone of human dignity and the other rights in the Bill of Rights.
Notwithstanding the provisions and guarantees of both the Constitution and Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA), the queer community still struggle to enjoy the basic right of being parents because of the genetic link requirement in the surrogacy process.
Surrogacy is one of the avenues that heterosexual couples can utilise should they be unable to have children through the conventional biological means; in South Africa surrogacy is available to the queer community and this group can enter into legal marriages.
This is because the enabling legislation, the Children’s Act requires one of the parents to produce a gamete to qualify as a “commissioning parent”. The requirement itself is prima facie unconstitutional because infertility could be described as a disability. The requirement does not only erode the equality rights of infertile people and the queer community and all who wish to use surrogacy, it is also an affront to the right to freedom
and security of the person, specifically regarding decision-making about reproduction. This is because it deprives these individuals of an equal right to make decisions about starting a family. The requirement also prejudices the right to dignity, which forms the basis of our constitutional sacrament.
This study will considers the legal position with regards to surrogacy and being queer in selected jurisdictions including Kenya and Namibia as well as Canada which has adopted legislation or regulations that ensure that homosexuals can use surrogacy procedures as painlessly as their heterosexual counterparts. The main focus will be the comparison of surrogacy in above jurisdictions.