Family Law: Does Donating Sperm Make One a Dad or a Donor?

Kahlil Gibran, the Lebanese poet in his seminal work the Prophet, offers the following observation about children:

“Your children are not your own

They are life’s longing for itself

They come through you but not from you

And though they are with you yet they belong not to you.”

On the 17th of June of this year in the Pretoria High Court, Kollapen J dismissed a man’s claim for legal access to his son, whom he fathered by donating sperm to a same-sex couple in May of 2015.

In terms of South African law, section 23 of the Children’s Act states that any person who has an interest in the care, well-being or development of a child may apply to the High Court …. for an order granting to the applicant, on such conditions as the court may deem necessary –

  1. Contact with the child; or
  2. Care of the child.

When considering such an application, 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;
  3. The degree of commitment that the applicant has shown towards the child;
  4. The extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
  5. Any other fact that should, in the opinion of the court, be taken into account.

Section 24 of the Children’s Act states that any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant. In considering such an application 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.

The donor in this case had applied to the High Court for rights of contact and care in terms of section 23 of the Children’s Act as well as guardianship in terms of section 24 of the Children’s Act, in addition to the birth mothers. His mother, the child’s paternal grandmother, also applied for section 23 rights of contact and care.

The development of a donor-child relationship

The couple had found their sperm donor through Facebook. They concluded a formal sperm donor agreement in May of 2015, and thereafter the donor was not involved in the pregnancy process. In terms of this agreement, the donor was not to have contact with the child and abdicated his rights to the child. Two days after the child’s birth, however, the donor and his mother went to meet the child and, the donor stated:

“From the first moment I held (the child) in my arms, I felt a bond with him. I also recognized some of my physical features in him and there was no doubt that biologically speaking, he is my son.”

After birth, regular contact was maintained in that the birth mothers brought the child to the donor’s business and he was invited to all birthday parties of the child. The donor was allowed to arrange the child’s third birthday party in totality. When the child was three and a half, the birth mothers concluded a lease agreement with the donor in which they would lease a smallholding which he owned and which was positioned adjacent to the residence of the donor. During this period, the donor and his mother had daily interaction with the child and thus became actively involved in the life and upbringing of the child. At the end of 2019, the birth mothers, however, cut all ties with the donor and his mother, refusing them any contact with the child.

Does a donor have legal standing?

The birth mothers argued that the donor lacked legal standing because of the formal sperm donor agreement which was in place and as a result of section 40 of the Children’s Act which states that whenever the gamete(s) of any person have been used for the artificial fertilization of a woman, any child born of that woman as a result of such artificial fertilization must for all purposes be regarded to be the child of that woman. As such, no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilization and any person whose gamete(s) have been used for such artificial fertilization or the blood relations of that person, except when –

  1. that person is the woman who gave birth to that child; or
  2. that person was the husband of such woman at the time of such artificial fertilization.

The donor approached the court purely on the basis that a relationship has developed after birth of the child, and it is in the interests of the child that the bond be recognized as is envisaged by section 23 of the Children’s Act.

The outcome?

Kollapen J emphasized the role of the sperm donor agreement in this case and the fact that the agreement makes it clear that the birth mothers would be the parents of the child and that the donor would have no claim of rights to the child. The birth mothers allowed the donor limited contact to the child out of a sense of gratitude and at all material times were secure in the knowledge that the agreement they had concluded secured their parental rights towards the child. Kollapen J held that it would be incorrect to hold that in opening the door to allow the donor and his mother limited contact with the child, they were affording far reaching rights to the donor and his mother. Kollapen J held that the child is well cared for and lives in a family that is sensitive and responsive to his needs and there exists no evidence to prove that contact with the donor will redound to the child’s best interests. If anything, it would cause confusion, create new, alternate and possibly conflicting centers of focus in his young life. The existence of love, affection and concern towards a child does not trigger an entitlement to contact in terms of section 23 of the Children’s Act. Kollapen J concluded that the family that the birth mothers have made for themselves in their relationship with their child is special, intimate, and worthy and deserving of constitutional protection from outside interference and, in doing so, dismissed the claim of the donor.

Written by Megan Teubes

For any assistance or guidance contact Stephen Duffett at sduffett@dkvg.co.za

This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.

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