The constitutional conundrum of the rights of children and known sperm donors

November 1st, 2021
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The rights of children are of paramount importance in terms of s 28 of the Constitution and s 38 of the Children’s Act 38 of 2005. The High Court is the upper guardian of all children to determine what is the best interest of the children. Although ‘the best interest principle has not been given an exhaustive content … the standard should be flexible as individual circumstances will determine the best interests of the child’ (see Ex parte WH and Others 2011 (6) SA 514 (GNP) and Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC)).

‘The rights of individuals to bear and raise children are broadly recognised and supported by the state through various measures, including the provision of financial assistance, social and other support services. It encompasses the right to have one’s own child with whom the parents share a genetic link, the right to adopt a child under certain circumstances, and, more recently, in recognition of the physical and medical difficulties people may experience in seeking to have a child of their own, the right to have a child through a surrogacy arrangement’ (Ex parte WH at para 31).

African law remains to be decided and uncertain. South Africa (SA) recognises surrogacy agreements, which has been incorporated into South African family law with the introduction of s 40 of the Children’s Act.

‘The [Children’s] Act provides in broad terms for the legal requirements attendant upon entering such agreements, as well as requiring the confirmation of the High Court to render such agreements valid. The Act followed after considerable thought was given to the legal ramifications of the acknowledgment of surrogacy within our legal framework by the ad hoc committee on surrogacy motherhood’ (Ex parte WH at para 31).

Currently there is no case law to guide courts for donors who want access to their children and recently there has been the resurfacing of cases of sperm donors launching applications to revoke their donor agreements. Known sperm donors want to be included in being role players in the child’s wellbeing and upbringing. Thus, the question arises whether a known sperm donor agreement is recognised and whether it is valid in SA.

It remains a fact to note that some ‘situations involving a known sperm donor’s parental rights are much more complex than situations involving an anonymous donor. For instance, in New York, courts will not enforce any contract between a sperm donor and the recipient in relation to parental rights.

However, creating a sperm donor agreement prior to using medical insemination may help to establish the parties’ intent. Absent an agreement, the best interest of the child standard is used for custody issues.

In California, any person who provides sperm that is used for assisted reproduction is considered a sperm donor, and is not a parent. If the donor intends to be a parent to the child conceived, then a written agreement with the birth parent must be signed before conception’ (Sarah Tipton ‘Sperm donor parental rights and obligations’, www.legalmatch.com, accessed 7-10-2021).

On 14 April 2021, judgment (QG and Another v CS and Another (GP) (unreported case no 32200/2020, 14-4-2021) (Kollapen J)) ‘was reserved in an application launched by a sperm donor to have access to his biological son after the child’s biological mother and her same-sex partner severed all ties with him’ (Zelda Venter ‘No case laws to guide court for sperm donor who wants access to child-counsel’, www.iol.co.za, accessed 7-10-2021).

‘The applicant approached the [Gauteng Division of the High Court] in terms of section 23 of the Children’s Act, which states that 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. [The sperm donor] is not asking to replace the couple but to be granted the right to have contact with the child’ (Caxton Reporter ‘Sperm donor’s battle to see “his child”’, https://rekord.co.za, accessed 7-10-2021).

‘The parties … agreed that this case is a first of its nature in South African legal history. Judge Jody Kollapen was told by counsel for the sperm donor that the application addressed novel issues paving the way forward in law and that there are no existing case laws in this country to guide the court.

At centre stage is a little boy who turned five this month. On the one hand is the applicant, who donated the sperm to conceive him. In the other camp are the child’s same-sex parents. The sperm donor and his mother (the child’s biological [grandmother]) want to be involved in the child’s life and be able to have contact with him.

The [same-sex] couple, on the other hand, said they are legally the child’s parents and that they do not want the donor to be involved and to interfere in their family. The donor is at this stage only asking the court to grant him interim access to the child, which would involve him seeing the child at certain agreed on times. This, [the donor] wants, pending an investigation by the office of the Family Advocate as to what is in the best interest of the child.

The ultimate aim of the donor is to obtain guardianship over the child. His [legal] team argued that he does not want to take over the parental responsibilities. He respected the fact that the two respondents were the [child’s] parents. He only wanted to be able to have some say and be involved in the child’s life. The respondents, however, said after they had linked-up with the sperm donor on social media and he agreed to father the child, they had drawn up a contract in which he denounced all rights to the child. The father is not deny this, but he and his mother have approached the court, under the Children’s Act, which means that the court has had to determine what was in the best interest of the child.

While the respondents denied that the sperm donor was very involved in the child’s life up to now, he differed. Judge Kollapen was told that on the day after he was born, the mothers invited him and his mother to come to hospital to see [the child]. The [donor] said when he held the newborn baby in his arms, he realised he had not appreciated the psychological effect his sperm donation would have on him when he entered into the donorship agreement.

According to [the donor] he had ever since been involved in the child’s life – especially in 2019 when the [child’s parents] stayed in another house on his plot for eight months. [Advocate Liezl Haupt SC, acting for the donor] said that the man did not want to encroach on the child’s family life and he would never tell the child he is the father, without the consent of the [parents]. He just wanted contact.

It was agreed between the parties during argument that the fact that the applicant [was] the sperm donor, did not automatically give him parental rights or cause him to receive special treatment. The judge was asked by the applicant to weigh the case up against the provisions of the Children’s Act and the duty of the court as upper guardian of all children in [SA], and then to decide what would be the best for the child.

The respondents maintained that the applicant had no legal standing in bringing the application, as he should be viewed as an ordinary person who wanted contact with a child who already had a close-knit family. Counsel for the [parents] used the example that she liked her neighbours’ child, but that did not allow her to be involved in that child’s life.

In reserving judgment, Judge Kollapen said he not only had to consider these complex issues measured against the law, he also had to look at the human side of things’ (Venter (op cit)).

It is important to note that ‘states vary widely on their laws concerning sperm donation and legal parentage. In Pennsylvania [in the United States] genetics determines legal parentage. This means that if a DNA test shows that the known donor is the father, then he will be considered the legal father – even if his name is not on the birth certificate.

In most states, such as New York, the best interest of the child is considered before allowing a genetic parent to surrender their parental rights and obligations. If the parental rights are to be surrendered to the mother’s spouse or partner, the court will likely allow that surrender.

However, if the mother is a single parent and no one else is assuming the surrendered parental right, then the known donor cannot surrender those rights. This means that the known donor may be able to sue for custody and visitation rights, and the mother can sue for child support.

Even if you have a written contract that attempts to relinquish parental rights, a court may enforce full parental obligations upon you. It is the job of the court to uphold state law, as well as consider what is in the best interest of the child.

This is not to say that one should not have a written contract, because you should have a detailed contract outlining parental intentions’ (Tipton (op cit)).

Although each case is treated differently on its merits, the questions that still needs to be addressed by Parliament are:

  • Does a sperm donation make a donor a parent?
  • What are the sole intentions of the parties when entering into the agreement?
  • Can the donor’s agreement be revoked and be challenged later, more particular, to known sperm donors considering the best interests of the child?
  • Can the donor acquire full custody of the child, let alone to share guardianship of the child?
  • When does the contract becomes contra bonos mores?

A lot has been written by authors and writers about the legal implications of known sperm donors over the years and I share the same sentiments that ‘a known sperm donor’s parental rights are much more complex than situations involving an anonymous donor’ (Tipton (op cit)) and most do not have to enter into known sperm donor agreements, since it causes legal uncertainties until same is clarified by the courts through precedents.

Sipho Tumelo Mdhluli LLB (University of Limpopo) is an LLM candidate at Unisa and is a legal practitioner at Marisana Mashedi Attorneys in Middelburg.

This article was first published in De Rebus in 2021 (Nov) DR 20.

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