Sperm donors and their rights regarding the child

June 1st, 2022
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For many South Africans the costs associated with utilising an anonymous sperm donor from a sperm bank are simply not affordable and remain an exclusive avenue that only a few can afford.

A new phenomenon that is looking to curb the expenses related to sperm donors, are persons entering into agreements whereby individuals they know donate their sperm with the objective of impregnation. This arrangement is commonly known as a ‘known donor agreement’.

Such an agreement might be referred to as a ‘known donor agreement’ but the legal consequences that flow from such agreement is still unknown in our legal landscape. The recent case of QG and Another v CS and Another (GP) (unreported case no 32200/2020, 14-4-2021) (Kollapen J) serves as testimony to this.

Factual background

In that matter, a lesbian couple (the respondents) were seeking the help of a sperm donor to conceive a child. To circumvent the costs associated with sperm donations from a sperm bank, they resorted to using the social media platform, Facebook, to obtain a donor. The first applicant in the matter indicated his interest to serve as a sperm donor.

After discussions, the parties entered into a known sperm donor agreement in terms of which the respondents were established as the legal parents of the donor-conceived child. The first applicant, serving as the known sperm donor, was barred from obtaining parental responsibilities and rights in relation to the donor-conceived child.

Initially, the first applicant had agreed to the terms of the agreement, however, after interactions with the child, the applicant came to the realisation that he wanted to play an active role in the child’s life. This position caused conflict between the parties resulting in the respondents deciding that they did not want the applicant to be part of the child’s life.

The first applicant sought an order in terms of which he would be granted interim access to the child whereby he would be entitled to have contact with the child at certain agreed on times. The primary objective of the first applicant was to obtain guardianship in relation of the child. The first applicant in his submissions empathised that his objective was not to take over the parental responsibilities.

Legal position in terms of South African law

As a point of departure, in terms of s 23 of the Children’s Act 38 of 2005 (the Act), anyone who has an interest in the care, well-being or development of a child may approach the relevant court for an order granting contact with the child or care of the child.

Sections 40 and 26(2) of the Act hold that a gamete donor, with the exception of a spouse, is not legally regarded as the parent of any child born from using their gametes. Accordingly, they do not acquire any parental rights and responsibilities relating to the donor conceived child because of their genetic link.

It is trite in South African law that the purpose of these sections is that the gamete donor relinquishes any claim to parenthood, and the attendant rights and responsibilities that come with it, by virtue of becoming a gamete donor. Accordingly, a person does not qualify as a person having an interest in the care, well-being or development of a child as provided for in ss 23(1) and 24(1) of the Act because of a genetic link caused by gamete donation. ‘An interest in the care, well-being or development of a child, therefore, needs to be based on facts other than genetic relatedness caused by gamete donation’ (QG at 44).

Legal position in terms of QG case

The applicants brought their application in terms of s 23 of the Act. Their argument was premised on the notion that an order granted in terms of s 23 would facilitate their ongoing presence in the child’s life and that such order would be in the best interests of the child as the applicants bring love and commitment to the child and are also able to contribute materially to his well-being.

The court held that when adjudicating an application premised on s 23(2), regard must be had for –

‘(a) the best interests of the child;

(b) the relationship between the applicant and the child, and any other relevant person and the child;

(c) the degree of commitment that the applicant has shown towards the child;

(d) the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and

(e) any other fact that should, in the opinion of the court, be taken into account’.

When considering the best interests of the child, the court found that the child was well cared for and lived in a family that was both sensitive and responsive to his needs. There was no evidence put before the court that would suggest that having contact with the applicants would amount to the child’s best interests.

The court further held that allowing contact may cause confusion, create new alternate and possibly conflicting centres of focus in the child’s life. The court further concluded that the child’s best interests were already adequately catered for by the respondents and that granting contact rights to the applicants would not be in the best interests of the child but may rather create great uncertainty.

When looking at the relationship between the parties and the child, the court found that although the applicants felt deeply and strongly for the child, it could not follow that the existence of that level of affection and concern should not trigger an entitlement to have contact. The court also considered the fact that the applicants had not had contact or interaction with the child for a major part of his life and certainly no contact for the past 18 months. This absence of the applicants did not have any disruptive effect in the child’s life. The relationship between the applicants and the child was a relationship of limited duration and interaction and while it brought great joy to the applicants, it was in all respects a tangential and subsidiary relationship to the one that the child enjoys with his parents.

When considering the applicants’ commitment to the child, the court found that the applicants were committed to the child and wanted the best for him, however, such commitment occurred in the context of a limited relationship and could not be dispositive of the matter.

The court also considered the applicants’ contribution towards expenses and found that the applicants had provided the child with gifts from time to time, but all the child’s essential needs had been taken care of by the respondents. The respondents had within their available resources provided well for the child and there was at no stage any request by the respondents for assistance from the applicants.

Order made by the court

Pursuant to the abovementioned legal positions, the court in QG found that the relief sought by the applicants had to fail. The court emphasised that the reason for such failure was not based on the fact that the applicants were ill-suited in their commitment to the child but rather in recognition of the family that the respondents had made for themselves in their relationship with their child, were intimate and special and were both worthy and deserving of constitutional protection from outside interference, even if the latter was well-meant. The granting of the contact rights sought would, therefore, not be in the best interests of the child.

Critical analysis of the matter

It is evident from the courts approach in this matter that a claim in terms of s 23 for contact and/or care must be predicated on the factors that are outlined in the section. To somehow infuse the genetic link into the process, as the first applicant in fact did but disavowed the reliance on such a link, did an injustice to the regime that s 40 contemplates, which is to provide legal certainty in the artificial reproduction system in South Africa.

Similarly, the court had little regard for the merits of the written agreement concluded between the parties. The High Court served as the upper guardian of children; therefore, a Constitutional duty is placed on the court to ensure that the best interests of the child is advanced and at the forefront, irrespective of the agreement concluded between the parties.

Considering this duty, the primary issue before the court was not what the parties had agreed to, but rather, whether allowing contact would be in the child’s best interests. Therefore, as confirmed by the court, the first applicant’s status as a sperm donor, as well as the known donor agreement did not bar persons from bringing an application in terms of s 23 of the Act. Therefore, in instances where there is a long-standing relationship between the sperm donor and the child or contact and/or care would be in the child’s best interests, such application may be granted.

Conclusion

This judgment is, therefore, an indication of the risks associated with known donor agreements. Ultimately, the best interest of the child is the primary factor, which the court considers. Therefore, if any disputes arise, the court may elect to ignore the agreement concluded between parties. Individuals entering into a known donor agreement should, therefore, be wary with whom they enter into an agreement.

Roby Snyman LLB (Stell) is a candidate legal practitioner at Herold Gie Attorneys in Cape Town.

This article was first published in De Rebus in 2022 (June) DR 15.

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