Section 40 of the Children’s Act: Parenthood by syringe or intention?

April 1st, 2021

A couple in a permanent life partnership have launched an application challenging the constitutionality of s 40 of the Children’s Act 38 of 2005, as a result of their gamete donor seeking parental rights.

Section 40, which governs children conceived through artificial fertilisation, does not automatically confer parental rights on a permanent life partner to the mother.

The couple seeks to change a section of the Act to the following in order to include permanent life partners –

‘any child born of that spouse or permanent life partner as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses or permanent life partners’.

One could speculate on which section of the Act the gamete donor is relying to claim parental rights. It would seem that he would need to apply under s 23 for care and contact and s 24 for guardianship. These two sections allow non-parents to apply for parental rights. He could not apply under s 21, due to the fact that artificial fertilisation was used.

If conception had been achieved without the use of a syringe he could apply under s 21 for recognition of automatically acquired parenthood, regardless of a sperm donor agreement.

Parenthood by clinic

If the couple used a clinic for artificial fertilisation, they would probably be able to prove that the conception was, as a result of, artificial fertilisation. However, if they had not used a clinic and there is no proof of artificial fertilisation, the gamete donor could commit perjury and be successful in a s 21 application.

Such legal disputes are probably more likely when a clinic has not been used. It is highly probable that a lay person would be unaware that a sperm donor can apply for equal parental rights under ss 21, 23, and 24.

However, one does not want to force would-be parents to spend money unnecessarily, or to conceive in a clinical setting, which may also limit their chance of falling pregnant. Many may not be happy to use a syringe or clinical introduction of gametes for various reasons. They may also not be happy with having to use frozen or ‘washed’ gametes (, accessed 12-3-2021). Many would be unnecessarily financially burdened by using a clinic or may be forced to forego parenthood altogether. Restrictions on the mode of conception exacerbate social inequalities and may have negative effects on the child. For example, take a heterosexual couple who wish to conceive with their own gametes, using a syringe at home, for reasons such as an HIV positive partner. Legally the biological father would not automatically acquire parental rights. The same would apply should two people who are not romantically involved decide to have a child together, using a syringe. This is because ss 20, 21, and 40 are mutually exclusive.

Preconception parental contract

The order sought will still fall short of creating a constitutional s 40. I would propose in place the following:

  1. Rights of child conceived with a preconception parental contract:

(1) Subject to s 296, the intended parents who are party to a preconception parental contract automatically acquire full parental rights and responsibilities.

(2) Subject to s 296, no right, responsibility, duty or obligation arises between a child born of a woman with a preconception parental contract and any person whose gamete has, or gametes have been used or the blood relations of that person, unless that person was an intended parent.

This is similar to Quebec’s legislated ‘parental project’ synonymous with the term ‘collaborative reproduction’ but encompasses instances where no third-party gametes were used. I prefer the term ‘intended parent’ as opposed to the oft-used ‘commissioning parent’ (RF Storrow ‘Parenthood by pure intention: Assisted reproduction and the functional approach to parentage’ (2002) 53 Hastings Law Journal 597).

Parenthood by intention

Currently, within the context of artificial fertilisation, regardless of whether a married couple uses their own gametes or a third party’s, they are automatically granted parental rights, based on their preconception intention to parent.

The Act’s definition of ‘parent’ currently excludes ‘any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation’.

This sentence confirms that the intention to parent is the factor that assigns legal parenthood, rather than the biological connection.

It would make sense that the same treatment be extended to any other person that articulated their intention to parent/not parent prior to attempted conception. The same should apply where no syringe is used. To do so otherwise would be unfair discrimination based on the mode of conception, birth or social origin. This notion has previously been confirmed in J and Another v Director-General, Department of Home Affairs and Others 2003 (5) BCLR 463 (CC).

Based on the Children’s Act excluding gamete donors from the definition of ‘parent’, it would seem apparent that it did not intend for s 21 to be applied to sperm donors, although not explicitly stated in s 21.

Intention is a good signal of legal parenthood, as it is a marker of responsibility for the child that exists even prior to conception.

Storrow (op cit) cites two thought-leaders on intention, namely Marjorie Maguire Shultz and Professor John Lawrence Hill. Shultz speaks of ‘the legitimacy of individual efforts to project intentions … into the future’ and ‘procreation and sexual-interpersonal intimacy are no longer tied together’.

Prof Hill clarifies ‘[w]hat is essential to parenthood is not the biological tie between parent and child but the preconception intention to have a child, accompanied by the undertaking of whatever action is necessary to bring a child into the world’.

Known donors, the ‘limited parent’ and grey areas

One aspect that will need to be addressed in future, is the role of the ‘limited parent’ (Susan B Boyd ‘Gendering legal parenthood: Bio-genetic ties, intentionality and responsibility’ (2007) 25 Windsor Yearbook of Access to Justice 63). Just as adoptive parents may enter into an agreement with a biological parent, some intended parents may wish for the gamete provider to have a role in the child’s life.

Regardless of whether all these changes are made to the Act, a sperm donor could still apply as an interested party through ss 23 and 24, which are problematic because of their open ended and vague nature. But these suggested amendments mean a gamete donor, that is not an intended parent, could no longer automatically acquire parental rights and responsibilities.

Ultimately, there are always factors that will supersede even the best written laws, namely –

  • an incorrect interpretation of the law by both layman, legal practitioners, and judges, both intentionally or not;
  • corrupt legal practitioners and court staff; or
  • perjury committed by parties.

In practice, the judiciary exhibits a strong bias in favour of awarding sperm donors’ parental rights. The right to know one’s biological origins cannot be expected to be realised if the law does not provide certainty to those who use known donors that their choice of family structure will be respected and not undermined.

Louise Scrazzolo BTech Marketing (Unisa) is situated in Durban.

This article was first published in De Rebus in 2021 (April) DR 8.