Attempting to be dad and dad: examining the challenges of surrogacy for gay couples in Namibia

Abstract

This dissertation confirms that the current landscape in Namibia fails to adequately cater for the recognition of gay couple’s rights to create families by means of surrogacy. It concluded this by examining challenges of surrogacy for gay couples in Namibia and found that gay couples experience numerous challenges in creating families. In its research it discovers that Namibia’s position on gay couples stems from the enactment of the Sodomy law. Its social and political climate (which has more than 30 years) enabled inequality and discrimination between heterosexual and homosexual couples. Following its repeal, Namibia’s stance has yet to change. The basis of this research focuses greatly on the rationale of the right to family creation. It provides detail on the right to family creation internationally and regionally and places significance in the need for Namibia to recognise the exercise of this right, irrespective of one’s gender and/or sexual orientation. The importance of this grants gay couples equal rights to family creation while Namibia simultaneously adheres to its obligations under international laws. Following the above, a discussion proceeds on the challenges gay couples in Namibia face. The study looks predominately at the consequences of the Sodomy law while acknowledging its recent repeal. Detail is provided on the systematic challenges which gay couples face due to the lack of human rights recognition. This includes the demeaning attitude of both the legislature and judiciary against gay couples, the non- recognition of gay marriages and discrepancies in access to parenthood. To exacerbate this position, Namibia does not have legislation to regulate surrogacy. The Child Care and Protection Act is used as a point of departure, therefore the rights, responsibilities and obligations which ordinarily flow from such a relationship do not apply ex lege.