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The term “sperm donor” usually implies the donation of sperm by a man, which is to be inseminated into the person to whom the sperm was donated, for the purposes of procreation, wherein no parental rights and responsibilities attach to the donor in respect of a child born from the insemination, despite the manner of the insemination.

However, recently the North Gauteng High Court was tasked with determining whether a man who donated his sperm (“the applicant”) to a same-sex couple (“the respondents”), is entitled to have access to the child who was subsequently born of the insemination and who is currently aged 5 (five) years old (“the Child”).

Whilst judgment was reserved by the Court and has yet to be handed down, the case is the first of its nature in South Africa and raises important legal issues pertaining to sperm donors’ rights in respect of a child born from the use of their sperm.

2 (two) sides to every story:

Whilst the applicant and respondents have agreed that the fact that the applicant is the sperm donor, does not automatically give him, inter alia, parental rights, the applicant and respondents rely on a differing set of facts and circumstances in substantiating their respective cases:

The applicant:

The applicant maintains that he has been actively involved in the Child’s life up until recently wherein the respondents allegedly cut all ties with the applicant, including his ties with the Child. To this end, it is alleged that the respondents and the Child even lived on the applicant’s property for some months and he was invited to see the Child in the hospital the day after he was born, which he duly did.

Whilst the applicant does not deny that at the time of the donation he signed an agreement wherein he relinquished all rights to the Child (“the Agreement”), according to him, when he held the Child in his arms he realised that he, at the time of signing the Agreement, had underestimated the psychological impact his sperm donation would have on him.

As such, the applicant is currently seeking an Order from the Court wherein he is entitled to:

  • interim access to the Child, pending an investigation by the Office of the Family Advocate as to what is in the best interest of the Child (the effect of an Order of this nature, if granted, is that the applicant would be entitled to exercise contact to the Child as provided for in the Court Order which would either cease or continue upon the conclusion of the investigation of the Family Advocate, depending on what they determine to be in the best interests of the Child).

Ultimately however, the applicant is seeking an Order wherein he obtains guardianship of the Child, together with the respondents. In this regard, section 18(4) of the Act states that:

Whenever more than one person has guardianship of a child, each one of them is competent to, …any other law or any order of a competent court to the contrary, exercise independently and without the consent of the other any right or responsibility arising from such guardianship.(own emphasis added)

 To this end, the applicant contends that:

  • He does not want to take over the parental responsibilities in respect of the Child;
  • He respects that the respondents are the parents of the Child; however, he ultimately wants to have contact to the Child and have some say in the Child’s life; and
  • He does not want to encroach on the Child’s family life and undertakes to not tell the Child that he is the father, without first having the consent of the respondents.

The respondents:

On the opposite end of the spectrum are the respondents who submit that they are, by law, the Child’s parents and deny that the applicant has been involved in the Child’s life up until recently.

As such, the respondents argue that they do not want the applicant to interfere with their family and maintain that the applicant has no locus standi (legal standing) to bring the application as the Court should view him as an ordinary person who is desirous of having contact to a child who already has legal guardians.

In support of the respondents’ contentions, a legal expert joined the proceedings as amicus curiae (friend of the Court) and emphasised that sperm donation does not make one a parent. Additionally, he stated that while there are exceptions, the integrity of family units made possible through donorship should be protected.

The Law

In terms of section 20 of the Act, which specifically deals with the position with regards to parental rights and responsibilities in respect of unmarried fathers, the biological father of a child has full parental responsibilities and rights in respect of the child:

  1. “if he is married to the child’s mother; or
  2. if he was married to the child’s mother at:
    1. the time of the child’s conception;
    1.  the time of the child’s birth; or
    1. any time between the child’s conception and birth.”

If an unmarried father does not comply with the requirements of section 20 of the Act as aforesaid, section 21 of the Act provides that such father shall acquire full parental rights and responsibilities in respect of the child, if:

“at the time of the child’s birth he is living with the mother in a permanent life-partnership; or

he, regardless of whether he has lived or is living with the mother:

  • consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
    • he contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
    • contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.”

In the present case, it appears that the applicant is alleging that he has in fact complied with the provisions of section 21 as aforesaid to the extent that he has been involved in the Child’s life from birth up until recently, whereas the respondents contend that the contrary is true.

Ultimately however, according to section 24 of the Act, when an application for guardianship to a child is brought, such as in this case, the Court must take into account the following factors:

  1. “the best interests of the child;
  2. the relationship between the applicant and the child, and any other relevant person and the child; and
  3. any other fact that should, in the opinion of the court, be taken into account.”

Additionally, whilst the present case is the first of its kind in South African law, in the case of BR v LS 2018 (5) SA 308 (KZD), the court was tasked with deciding whether a “known sperm donor agreement” (where the donor is not anonymous, much like in this case) is legally valid. Whilst the Court was not persuaded by the arguments presented by either side in the matter, the Judge noted that such agreements may be contra bones mores (against public policy).

The Court further granted the donor in this matter parental rights and responsibilities, including the right to have contact to the minor child. In coming to this decision, the Court took into account, inter alia, the following factors:

  • Whether the actions/involvement of the donor prior to, during and after the child’s birth complied with the requirements of section 21 of the Act as set out more fully above;
  • The time between the respondent’s requesting the applicant make the donation and the request to sign the agreement; and
  • The fact that the applicant elected not to sign the agreement relinquishing his rights to the child.

Whilst the above highlights what the applicable legislation states and what the Court will need to take into consideration in making its ruling, there is currently no legal certainty with regards to sperm donors and their rights and responsibilities in respect of a child born of their donation. However, it is trite that in all matters pertaining to a child, the best interests of the child are paramount which will necessarily be the overarching factor in coming to its determination.

Conclusion

In light of the above, the High Court, as upper guardian of all minor children, will ultimately have to decide whether it would be in the best interests of the Child to have the applicant involved in his life, whilst considering the complex legal questions that have been raised in this matter, weighed against the “human side of things”, as stated by the Honourable Judge Kollapen.

Tarin Page

Senior Associate at HJW Attorneys

**This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.