Giving Some Parental Rights Of Contact And Care To A Gamete Sperm Donor

In July 2024, the High Court in Johannesburg granted parental rights to a man who fathered a child as a "sperm" donor i.e. through artificial fertilisation. The man wanted to the court to recognize his right as a parent and to be the holder of guardianship rights over the child.

The mother of the child, a lesbian woman, met the father of the child, a gay man on an online networking site, with the express purpose of having a child through artificial fertilisation.

The woman said she specifically wanted the sperm donor to be known- [generally sperm donors are anonymous] so that she would be certain about the child's heritage and origin.

The artificial fertilisation was performed at the woman's home without the parties complying with the requisite regulations surrounding artificial fertilisation. There was no medical practitioner specialising in gynaecology present and the process was overseen by the woman's life partner who was a qualified nurse. During the pregnancy, the man accompanied the woman to her medical check-ups and he was introduced as the father of the unborn child.

When the child was born, the man's details were recorded in child's birth records. The child uses a double-barrelled surname. The man said he included the child as a beneficiary in his medical aid scheme, attended the baby-shower celebration and bought gifts including a baby cot and car seat.

He also consented to the school that the child was enrolled at and paid half of the school fees. He introduced the child and the mother of the child to his extended family.

When it became clear to the woman that he wanted to be fully involved in the child's life and upbringing, she reminded him that he is just a sperm donor and did not enjoy such rights.

The man refuted that claim. He withheld his consent when the woman had to travel abroad with the child and he insisted she signs a co-parenting plan. The matter then proceeded to court.

The Office of the Family Advocate who assists the court when rights of minor children are at stake, reported that the man had a "legitimate interest in the care, well-being and development' of the child and that his interests in the child was more than 'a mere sperm donor'.

The high court found that there was no doubt that the man developed a relationship with and showed an interest in the care and well-being of the child. The court said it was in the child's best interest that the man be given rights of access and contact to the child.

So even though he was a gamete sperm donor, the court found that it would not be in the best interests of the child to completely and exclusively remove the man from the child's life.

However he was not given any guardianship rights over the child. The court regarded the child as the child of the woman and her partner and the man as a gamete donor in terms of s 40 of the Children's Act.

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