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Tuesday, April 14, 2015

Gay dads vs red tape.

The Home Affairs Department is at risk of being hauled into court for ignoring a court order that it register a same-sex couple as the parents of their surrogate-born child.

The battle could set a precedent. Many same-sex couples and single men are desperate to become parents but are unable to do so because of the department's failure to recognise their rights in respect of surrogacy.

Surrogacy is governed by the Children's Act of 2005 as amended. The provisions for surrogacy came into effect in April 2010.

Stuart Logan and his husband, Niclas Wagner, have been stonewalled in their attempts to register themselves as the parents of Neo, a boy born two weeks ago.

"Since our marriage we have wanted a child," said Logan. "But now that our beautiful son has been born the department is slamming doors in our faces, preventing us from being registered as Neo's parents."

Their battle started when they were issued with Neo's birth certificate last week.

Instead of reflecting both men as Neo's parents, in compliance with the Cape Town High Court order, only Logan's name was on the certificate. He was cited as the father.

According to the certificate, the mother is unknown. Wagner is not cited as the other parent.

Department officials allegedly tried to get the couple to break the law by registering the surrogate as Neo's mother.

Logan said: "We told them we wouldn't because it's illegal. All we want is a child, but now, after preparing for our child for three years, locating the egg, finding the right surrogate mother to carry our child, and complying with all the laws, we are being blocked."

Several attempts since Thursday to get comment from Home Affairs have failed.

Logan and Wagner's lawyer, Robynne Friedman, said there were many same-sex couples and heterosexual single men hitting a brick wall with the department.

South Africa, said Friedman - a surrogacy law specialist - has surrogacy laws that are among the world's most progressive.

"The problem is not the law but the Home Affairs Department, which has staff ignorant of the country's surrogacy laws and who operate with computer systems that cannot compute same-sex couples as surrogate parents."

She said her law practice handled about 20 same-sex surrogacy applications a year.

"What's happening is an absolute nightmare, not only for this couple but for others.

"If their child's birth certificate is not amended we are going to court to compel the department to do what it's legally and constitutionally obliged to do."

Friedman said she was concerned that department officials had wanted the couple to name the surrogate mother as the mother.

"It's blatantly illegal, especially in terms of the court order.

"Her name may not appear on any documents in relation to the child."


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