No case laws to guide court for sperm donor who wants access to child – counsel
By Zelda Venter Apr 14, 2021
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Judgment 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.
The parties before the Gauteng High Court, Pretoria 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.
Advocate Liezl Haupt SC, acting for the donor, in fact told the judge that he would have to apply the wisdom of Solomon in deciding this application.
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 granny) want to be involved in the child’s life and be able to have contact with him.
The lesbian 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 little 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, he 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 team argued that he does not want to take over the parental responsibilities. He respected the fact that the two respondents were the 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 denying this, but he and his mother have approached the court, under the Children’s Act, which means that the court 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 him.
The man said when he held the newborn 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 him he had ever since been involved in the child’s life – especially in 2019 when the mothers stayed in another house on his plot for eight months..
Haupt 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 mothers. He just wants contact.
It was agreed between the parties during argument that the fact that the applicant is 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 our country, 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 has a close knit family.
Counsel for the mothers used the example that she liked her neighbours’ child, but that did not allow her to be involved in that child’s life.
During the start of the proceedings Judge Kollapen said as a child was involved, the media would not usually be allowed to attend the matter.
But he has made an exception, provided the parties are not identified, as this case addressed important issues in law.
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.
University of KwaZulu Natal law expert Professor Donrich Thaldar meanwhile joined the proceedings as a friend of the court and stressed that sperm donation doesn't make one a parent. He said while there are exceptions, the integrity of family units made possible through donorship, should be protected.