In a judgment after a legal spat between a sperm donor and the same-sex couple who have parenting rights over their now 5-year-old daughter, it was reiterated that legally, the biological father had no parenting rights over a child born of artificial insemination.
While the court did confirm the lesbian couple’s full parenting rights, the judge said the father should have contact with the child and pay maintenance towards the child because it was in the child’s best interest to do so.
The couple turned to the Gauteng High Court, Johannesburg, after problems arose between them and the sperm donor father. He refused permission for the couple to take the child abroad for a visit and insisted on his rights as the father.
The mother who gave birth to the child, identified as AV, after deciding to become a mother, created a virtual profile on various digital platforms in search of a sperm (male gamete) donor in order for her to be fertilised.
The couple, however, decided to find a known donor rather than an anonymous donor, as they were concerned that the child would be negatively affected if the child was uncertain of their heritage and origin.
AV succeeded in finding DC, the sperm donor, on social networking platform “co-parentmatch.com”. The platform connects people who wish to become co-parents.
DC said he had joined to have a child by supplying his sperm to a woman who would also be willing to co-parent the child with him.
DC told the court that the fact that the platform was designated “co-parentmatch”, as well as his profile on the platform, was evidence that he was interested in providing his sperm only for purposes of becoming a co-parent.
AV said that she and NZ, her partner, had made it clear to DC from the outset that they were not interested in sharing parenthood.
They had nevertheless agreed that he would father the child and in June 2018, AV had fallen pregnant.
They had invited DC to their home and informed him that the artificial insemination had been successful. He had also attended some of AV’s check-ups at a gynaecologist. He had been introduced to the gynaecologist as the father of the unborn child.
The surname of the child, they had jointly agreed, would be double-barrelled, made up of a combination of AV and DC’s surnames. It had also been agreed that the child would be informed (in time) that he was the donor (according to them) or father (according to him); that the child would be introduced to his family, and that he would make a financial contribution towards the child’s school fees.
After the birth, DC had been registered as the child’s father. One of the consequences of the decision was that DC’s consent was required when applying for a passport for the child. He had seen the child regularly for about a year.
All had gone went well until the couple had realised that he wanted to play a bigger role in the child’s life. He had placed pictures of the child on Facebook and claimed that they were “a nuclear family”.
AV had informed him that she and NZ had always intended to be the parents of Z, and that as a donor, he was to have limited contact with Z. He, in turn, had insisted on being a full father to the child.
Things had soured when the sperm donor refused permission for the mother to travel abroad with the child, unless she signed a parenting agreement with him. She had to, earlier, urgently turn to court in order to travel with the child.
In the present application, AV, among others, asked that DC’s name be removed from the birth certificate of Z and replaced by the name of NZ. They also asked that they be regarded as the parents as envisaged in law, which would include giving NZ full parenting status. He, in turn, asked to have parental rights and contact with the child, as he had not seen her since 2019.
Judge Bashier Vally said DC was not just a sperm-donor as AV and NZ contended, and neither has a co-parenting agreement concluded between them. What each of them had envisaged or anticipated when they had initially embarked on the journey of conception, and what they had subsequently experienced, were radically different.
The judge said that removing him altogether from the child’s life would be alienating him from Z, which was not in her best interests.
Judge Vally ordered that while the couple remained the child's legal mothers, contact between him and Z should gradually be restored and he should be awarded the privilege of contributing towards her care.
Pretoria News