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By Herbert James David Robertson
The South African family law fraternity is familiar with surrogacy agreements. The surrogacy agreement has been incorporated into South African family law with the introduction of s 40 of the Children’s Act 38 of 2005 (the Children’s Act) on 1 July 2007. However, the so-called ‘known sperm donor agreement’ seems to be a novel issue to our corner of the world, with the legality and effect thereof still to be determined.
During 2018 I consulted with a client regarding the legal recognition of the so-called known sperm donor agreement. The facts in the matter were as follows: The client had fallen pregnant, but her ex-boyfriend presented her with a known sperm donor agreement, which portrayed him as a mere ‘donor’, without any rights, and more importantly, without any responsibilities towards the child. A dispute ensued, which was settled when the parties entered into a parenting plan. It goes without saying that the parenting plan provided for the father to have both rights and responsibilities towards his child.
A known sperm donor agreement, in essence, provides for a sperm donor – usually through natural insemination – neither to hold parental rights nor responsibilities towards a child born from the intercourse between the parties. The agreement is called a known sperm donor agreement as the identity of the ‘donor’ is known to the mother, in contrast to a sperm donor agreement where the identity of the donor is unknown to the receiver of such sperm. The known sperm donor agreement’s legality and effects are still to be determined in our law, which is the focus of this article.
The decision of BR v LS 2018 (5) SA 308 (KZD) was handed down on 15 June 2018 in the Local Division of the High Court in Durban. The facts of the BR matter were similar to the events described in the consultation above.
The applicant (the father) met the respondent (the mother) in 2007 and they became romantically involved in January 2011. The relationship was terminated at the end of June 2012. Two years after terminating the relationship the respondent approached the applicant and requested him to impregnate her. The applicant duly complied with the request. When the court inquired as to why the respondent did not make use of a sperm bank, the respondent contended that she preferred natural insemination to using an anonymous donor, as this would prevent any psychological difficulty for the child by not knowing the identity of their biological father.
It was allegedly agreed – between the parties – that the applicant would not have any rights nor responsibilities towards the child. The applicant said that it was agreed that he could be involved in the child’s life to the extent that he wished. The respondent then downloaded a known sperm donor agreement from the Internet, edited it and, thereafter, sent it to the applicant for signing. The applicant pondered thereon, but never signed the agreement.
During the pregnancy the applicant attended various medical appointments with the respondent and contributed financially to the medical expenses associated therewith. Further, the applicant attended antenatal classes with the respondent when requested to by the respondent. The applicant contended that he paid an approximate amount of R 40 000 in laying expenses to the respondent. The respondent only acknowledged having received R 24 000, which was not for laying expenses but rather an amount of R 4 000 for each month that she was on maternity leave. The applicant also paid maintenance, in respect of the child, but these payments were returned by the respondent.
When the child was born the applicant was registered as the father on the child’s birth certificate. The respondent allowed the applicant around two hours of contact with the minor, per week. The respondent was not content with only having contact with his child when the respondent allowed the same and, therefore, applied to the court to have it declared that, despite permanent residency of the child remaining with the respondent, he should be afforded parental rights and obligations in relation to contact and care of the minor.
The court had two questions to consider. The first being, whether the parties concluded a known sperm donor agreement and what the consequences of such an agreement would be and if the court could award the applicant parental rights and responsibilities in terms of s 23 of the Children’s Act, if it was found that the applicant had not met the requirements of s 21 of the Children’s Act.
Does South African law recognise a known sperm donor agreement?
The counsel for the applicant submitted that such an agreement is not recognised and, therefore, is without legal effect as the Children’s Act does not provide for it.
The respondent, acting in person, argued that consequences of the respondent being recognised as the father with the rights associated therewith, including the right to have contact with the child, cannot be lawfully enforced, as the applicant and respondent had concluded a known sperm donor agreement.
The respondent asserted that the result of the known sperm donor agreement, being that these legal consequences cannot apply to the child, as the applicant was only a ‘sperm donor’ without any rights or responsibilities in relation to the child. The applicant only had contact with the child due to her gracious concessions, and not because he had any right thereto.
The respondent, conceded that the known sperm donor agreement was not recognised in South African law, but submitted that such agreements are becoming more prevalent, not only in South Africa (SA), but also abroad. Finally, the respondent argued, that should the known sperm donor agreement not be recognised it would be inconsistent with her constitutional right to dignity and sexual preference and to choose single motherhood as a family structure. The applicant’s final remark was that should the known sperm donor agreement be recognised as valid and enforceable it would free her from having to consult with the applicant in relation to matters specified in the Children’s Act. She, therefore, requested the court to develop the law accordingly.
The court was neither persuaded by the applicant nor the respondent’s arguments and found that it was a novel issue to the South African legal regime. The court elected to decide the matter without making a ruling on the validity or recognition of the known sperm donor agreement in South African law, yet the court remarked this type of agreement may be contra bonos mores.
In this particular case the court looked at the period from when the respondent asked the applicant to impregnate her and the amount of time that had lapsed between the proposed agreement being handed to the applicant and him pondering thereon. From the facts the respondent asked the applicant to impregnate her on 25 May 2014, but only requested the applicant to sign the known sperm donor agreement on 15 September 2015, approximately six months after the child’s birth. From the evidence, it seemed that the applicant reflected on whether to sign the agreement or not for some two weeks, before electing not to do so.
The court awarded the applicant parental rights and responsibilities in finding that, through the applicant’s actions prior to, during and after the child’s birth the requirements of s 21 were met and the applicant was thus afforded contact rights with the child, which would be phased in, on every Wednesday from 12 pm (or after school) to 8 am on Thursday morning, every alternate weekend from Friday at 12 pm to Sunday at 4 pm, as well as holidays, birthdays and father’s day.
Thus, the question on whether a known sperm donor agreement is recognised and whether it is valid in South African law remains to be decided.
Canadian law and known sperm donor agreement
The Canadian province of Alberta and British Columbia have, as SA has, codified in their law that a ‘sperm donor’ is not recognised as a legal parent. Yet, there has been no pronouncement of the validity of a known sperm donor agreement.
This issue becomes even more complicated when one has regard to Ontario’s heteronormative presumptions (ie, a woman who delivers a child is the mother of that child, and if that mother has a male partner, he is presumed to be the father). Should a woman, however, have a female partner, there is no presumption of parentage.
Sperm donors and parental rights and responsibilities
Despite the court not ruling on this question, a few entities have already started selling known sperm donor agreements in SA. Online stores are selling copies of the known sperm donor agreement for
R 675. Further still, a known sperm donor agreement can be downloaded free of charge on the Internet.
The question, is not if an anonymous donor can be called to become the holder of parental rights and responsibilities, but rather whether after natural insemination a mother may raise the defence of a known sperm donor agreement when the father applies for parental rights and responsibilities.
The process of artificial insemination specifically provides for the identity of the donor and the person who receives the donation to remain unknown to the other party. The intention of the parties, respectively, being to donate and obtain sperm, without ever hoping for the donor to have a relationship with the child or to contribute to the child’s upbringing.
Should the child, however, have been conceived through natural insemination the father’s chances of being awarded parental rights and responsibilities vastly improve, despite having a known sperm donor agreement in place. In the same breath, the chances of a mother being successful in defending such an application by means of the known sperm donor agreement also seems unlikely, depending on the circumstances of the case.
I submit that the reason for this is, that in most cases it would be in the child’s best interest to have contact with their father, if both parents have agreed to it. Furthermore, it may be contra bonos mores for a child to be deprived of the right to be maintained by both parents, just because their mother elected to enter into a known sperm donor agreement.
Should the intention of the parties have been for the father to only be a sperm donor and neither party has a change of heart, such a father would, in all probability, never apply for parental rights and responsibilities. The mother would, therefore, be the sole holder of such rights and responsibilities. This arrangement would have a similar effect to that of an anonymous sperm donor.
Should the father, after the birth of the child, want to be part of the child’s life the applicant would in all probability be successful with his application, but for facts being presented to the court resulting in the court finding that such relief would not be in the best interest of the child in question.
Conclusion
The position and validity of a known sperm donor agreement in SA remains uncertain. Yet, when having regard to the best interests of the child and the possibility of such an agreement being contra bonos mores, as stated in the obiter dictum of the BR case, it would be advisable to recommend to clients not to enter into known sperm donor agreements. The risks of a known sperm donor agreement can be effectively remedied with legislative intervention, as was done with the surrogacy agreement in 2007.
For further reading, see also:
Herbert James David Robertson LLB (cum laude) (UP) is a legal practitioner at Lacante Henn Inc in Pretoria.
This article was first published in De Rebus in 2019 (June) DR 11.
