AV and Another v DC and Others (GJ) (unreported case no 40522/19, 26-6-2024) (Vally J)On 26 June 2024, Vally J sitting in the High Court in Johannesburg, delivered a judgment wherein, as the upper guardian of all minor children, he assigned contact and care to a gamete donor as envisaged in the provisions of s 23 of the Children’s Act 38 of 2005 (the Children’s Act). The judgment finds its genesis in the conception and subsequent birth of a child born of artificial fertilisation from a known as opposed to an anonymous ‘sperm (male gamete) donor’. The applicants sought an order terminating any form of involvement by the first respondent in respect of the child. The first respondent on the other hand sought relief to be recognised as parent and holder of guardianship rights. It is pivotal that one applauds the ratio decidendi and ruling by the judge. In his reasoning, Vally J noted that the best interests of the child is the immutable principle in all matters involving the child as enshrined in s 28(2) of the Constitution and s 9 of the Children’s Act.
Before I deal with the facts, I shall provide a synopsis of some salient definitions provided for in s 1 of the Children’s Act. This will place the reader in a better position to understand the rationale of the judgment. The definitions are as follows:
The first applicant, a lesbian woman and the first respondent, a gay man met on an online networking platform entitled ‘co-parentmatch.com’. At that time, the first applicant was in a relationship with the second applicant, and they were ad idem about having a child through artificial fertilisation and the sperm donor had to be known in order for the child born to be certain about his or her heritage and origin. The first applicant connected with the first respondent whose profile clearly stated, ‘I am looking to have a baby I can co-parent’. When asked about his view of being a sperm donor without any involvement in the care and well-being of the child, the first respondent said he is open to discussion.
The artificial fertilisation was performed at the home of the applicants and was thus conducted without compliance with regulation 7 of the Regulations: Artificial fertilisation of persons in GN R 175 GG35099/2-3-2012. It was not conducted by a ‘medical practitioner specialising in gynaecology with training in reproductive medicine’. It was in fact conducted by the second applicant who happens to be a qualified nurse. The artificial fertilisation succeeded on the third attempt and during pregnancy, the second respondent accompanied the first applicant to the gynaecologist for check-ups and he was introduced as the father of the unborn child. The child was born and the respondent’s particulars were inserted into the birth records of the child. The child uses a double-barrelled surname and the second respondent suggested the second name of the child which was accepted by the first applicant.
Furthermore, the second respondent included the child as a beneficiary in his medical aid scheme, he attended the baby-shower celebration and bought gifts including a baby cot and car seat. Moreover, the second respondent consented to the enrolment of the child in school and paid half of the school fees. The applicants and the child were physically introduced to the first respondent’s extended family in KwaZulu-Natal. The first respondent is involved in the child’s life and at one point had the child in his sole care for several hours. The issue commenced when the applicants noticed that the first respondent demonstrated intentions to be involved in the child’s life and upbringing. The first applicant reminded the second respondent that he is just a sperm donor, which was refuted by the second respondent. The second respondent withheld consent for the first applicant to travel to her home country with the child unless she signs a co-parenting plan.
The court noted the findings of a report by the Family Advocate to the effect that the second respondent ‘has a legitimate interest in the care, well-being and development’ of the child and the actions of the applicants indicated that the interests of the second respondent surpasses those of ‘a mere sperm donor’. The court had to decide whether the ‘agreement’ reached insofar as the second respondent’s involvement in the upbringing of the child could be categorised as co-parenting agreement plan. The court held that the ‘agreement’ only granted the second respondent certain rights of care and contact with the child. According to the court, a co-parenting plan must be tailored in a manner that upholds the best interests of the child. The court found that the second respondent ‘was not just a “sperm donor”’ nor ‘was a co-parenting agreement concluded’.
There is no doubt that the second respondent developed a relationship with and showed an interest in the care and well-being of the child, factors which are considered when determining the best interests of the child. As a result, he qualifies to be assigned access and contact as contemplated in s 23(1) and (2) of the Children’s Act. The court found that it would not be in the best interests of the child to award guardianship rights to the second respondent given the animosity between the parties. Nor would it be in the best interests of the child to completely and exclusively remove the second respondent from the child’s life. The court regarded the child as the child of the applicants and, the second respondent as a gamete donor in terms of s 40 of the Children’s Act.
Stanley Malematja LLB (UJ) LLM (UP) PGDip Human Rights Advocacy and Litigation (Wits) is a legal practitioner at the Centre for Child Law at the University of Pretoria.
This article was first published in De Rebus in 2024 (September) DR 36.
