The South African Law Reform Commission Project 110 Review of the Child Care Act Report (2002) recommended that all legal ties be severed in the case of gamete donors. As a result, the Children’s Act 38 of 2005 (the Act), excludes gamete donors, along with biological fathers of children conceived through rape or incest, from the definition of ‘parent’. This exclusion refers to gamete donation using artificial fertilisation. Artificial fertilisation includes home insemination, using a syringe. The Act is silent on instances of rape, where the victim is male, as well as whether gamete donors, in instances where intercourse is used, are excluded from the definition. One would imagine that in the latter case, such parties would similarly be excluded, on the grounds that to do otherwise would amount to unfair discrimination according to birth status, as well as not be in the best interests of the child.

Although the Act excludes such parties from the definition of parent, ss 21, 23, and 24 do not preclude such from applying for parental rights and responsibilities, including guardianship, to their biological child.

A report prepared by the Office of the Family Advocate, recommended a known sperm donor be granted full parental rights and responsibilities, against the child’s mother’s wishes. The recommended contact exceeded the maximum amount usually recommended by the Family Advocate for a non-resident, divorced parent. It was recommended that contact be twice a week for three hours, and eight hours alternating Saturdays and Sundays. It was further recommended that this progress to weekly overnights, bi-weekly weekend stays, and shared school holidays.

Paying lip service to fragmented rights

Should the sperm donor not be granted full parental rights, but still be granted the parental right of contact, it in essence still confers the sperm donor with the status of parent. Various sections of the Act are applicable to a ‘holder of parental responsibilities and rights’, regardless of whether they are not a parent, guardian, or full holder of parental rights and responsibilities.

For instance, should a sperm donor be granted the parental right of contact, the child’s mother would need to consult with him on issues such as education, and health care. He would also be entitled to enter into an agreement with a third party that would like to acquire parental rights and responsibilities.

This raises the question of whether it is in the best interests of a child to order the same contact regime for a sperm donor, as ordered for a father that was committed to the child prior to conception, and has lived with the child.

Invalidating chosen family structures

A further consideration is whether it is in the best interests of the child to override the mother in declaring the sperm donor a holder of parental rights. Surely, one needs to take cognisance of the difference that exists in declaring a divorced father a holder of parental rights, versus declaring a sperm donor a holder of parental rights. In the first instance, the order is declaratory in nature, as the father is the de facto parent. In the latter instance, the order effectively seeks to change the parental status of the sperm donor from non-parent to parent, imposing an additional ‘third party’ parent(s) without the consent of the original parent(s).

Just how devastating the psychological effect of such a declaration can be for a mother, can be understood by reviewing the outcome of the Australian case, Re Patrick [2002] FamCA 193. Just as with religion, sex and marriage, parenting is an intimate area of our life, in which most believe they should hold autonomy and choice. It holds, when one is forced to co-parent against their will, that party will experience a feeling of violation.

Although Guest J held that the sperm donor was not a parent, in May 2001, he granted a contact order of four hours fortnightly, which would increase over time to a contact regime considered standard for a parent. Subsequent to the order, Patrick’s mother received psychiatric treatment in a failed attempt to deal with the sperm donor’s involvement in Patrick’s life. In August 2002, as the prospect of the increased contact of eight hours from September loomed ahead, she killed both herself and 2-year-old Patrick.

The Patrick case is a sobering reminder of family law ideals coming up against the reality of the fallout. It would be a challenge for any mother in a heterosexual relationship to accept the behaviour of a third party photographing her child or acquiring property for her child without her knowledge and consent. By subtle means such as these, coupled with an assumption of a right to information about the child’s day-to-day activities, the third party attempts to assert parental status. Such are even more challenging, when there is no de facto male father figure present, and the assertion presents a very real threat to one’s position as parent in future. The Patrick case illustrated how a litigating third party’s demands will likely escalate as time progresses. The initially innocuous requests may seem benign, but assume great significance in the long term. What is ostensibly touted as the child’s right to a ‘relationship’ with a third party, obscures a desire to insert oneself as the central figure of importance in the family.

In stark contrast to the Patrick case, stands Hedley J’s contact order in the United Kingdom case of TJ v CV & Ors [2007] EWHC 1952 (Fam). His ordered contact of four times a year, for two hours, was intended to not have a feel of regularity to it.

It would seem apropos when discussing the child’s right to contact with a sperm donor, to investigate what an appropriate amount of maintenance would be. One must take care, that as with the parental responsibility of contact, the maintenance is in no way construed as conferring parental status on the sperm donor. One must also consider whether it would be in a child’s best interests to maintain contact with a sperm donor that holds parental right(s), but does not hold corresponding parental responsibilities?

Applying a ‘one size fits all’ approach

The litmus test for the suitability of the recommendations will be whether they sit well with heterosexual married couples that use a sperm donor (known or anonymous). The Patrick case involved a co-parenting lesbian couple, who conceived using artificial insemination of a gay donor’s sperm. Would the same regime have been suggested for a heterosexual couple, or does the gender of the co-parent determine the suitability of a third party contact regime for a child? There is currently no literature that indicates that a child’s healthy development requires a male, or even a second, parent.

The child’s best interest standard should surely not indiscriminately apply a contact regime of the type voluntarily agreed to by consenting, previously resident parents, in the instance of a litigating third party who specifically opted out of a committed relationship with the child and mother.

But, when considering what alternative contact regime should be suggested for a sperm donor, a much larger question emerges. Ultimately, is the need to create a relationship with a third party so great for the child, that it warrants the many negative consequences on the family of litigation and living in accordance with a court ordered contact regime?

The identity of this author is known to the editor and editorial committee. The author was party to the case.

This article was first published in De Rebus in 2017 (Sep) DR 51.