Victory for couple who refused sperm donor access to child he ‘fathered’

A sperm donor has failed in his legal bid to have contact with the child he “fathered”.

This is the effect of a ruling by Pretoria high court judge Jody Kollapen in an unusual court battle in which the donor and his mother sought visitation rights for the now five-year-old child.

The application was strongly opposed by the child’s parents, a same-sex couple who underwent artificial insemination to enable one of them to conceive.

The judge said while the applicant, whom he referred to as QG, and his biological grandmother may well love and feel a strong bond with the child, that did not give them the right to interfere in “the little special place [the respondents] have created for themselves”.

“While it may appear to be harsh, that is ultimately what is needed to respect and protect the intention and choice of the respondents in constituting their family.

The applicant, an interior decorator, brought the application in two parts.

The first, which was dealt with by Kollapen, was for visitation rights. The second will be launched after a still-to-be-held inquiry by the family advocate. In that, QG wants rights of contact and care and joint guardianship.

QG responded to social media postings in March 2015 by the couple, asking for gamete donors.

Guided by a lawyer they drafted the agreement, in which the donor agreed he would not demand, request or compel any guardianship or visitation rights, and would have no parental responsibilities and rights whatsoever.

I realised that I was not psychologically prepared for the impact of his birth on me and I was naive to think I can simply make an altruistic donation and not have the need to be in the child's life.

—  QG

But two days after the baby’s birth in April 2016, when he visited the child in hospital, he said: “From the moment I held him in my arms I felt a bond with him. I also recognised some of my physical features in him and there was no doubt that, biologically speaking, he was my son. 

“I realised that I was not psychologically prepared for the impact of his birth on me and I was naive to think I can simply make an altruistic donation and not have the need to be in the child's life.”

Until he was three, QG visited him several times.

Then, in 2019, the couple moved to a smallholding owned by him. It was situated next door to where he lived with his mother and they spent more time with the child.

But the judge said the relationship became strained and the couple moved out in January 2020. There had been no contact since.

In his application QG did not rely on a “biological right”, but on the bond. This because South African law is clear that sperm donors do not have any rights.

“This legal certainty is essential for sustaining the artificial reproductive system in South Africa. If this is compromised, donors would not be willing to donate, recipients would not be willing to accept donations and infertility would become an unsolvable burden,” Kollapen said.

QG also complained about the couple’s parenting, alleging the child was being homeschooled by one of the partners, who only had a standard seven (grade nine) education.

He said they often took the child to a local pub, exposing him to drunks, and that the child had injured himself when he was allowed to get out of a moving car.

It must be so that a family is often about intimate space and special bonds. While that space may be open to scrutiny when it involves the best-interests-of-the-child principal, it is also a space that requires protection and insulation from undue outside influence.

—  Judge Jody Kollapen

However, the judge dismissed these allegations as “mischievous”.

He pointed out that the pub was a respectable family restaurant with a children’s play area, that there was nothing wrong with the parent homeschooling a three-year-old and injuries were “just part of growing up”.

“It is clear that when the agreement was reached, no role was envisaged for him in the child’s life. They [the couple] say, and this is not unreasonable, that out of a sense of gratitude they allowed him to have some limited contact with the child, but they did not open the door to the kind of rights he now seeks.

“It must be so that a family is often about intimate space and special bonds. While that space may be open to scrutiny when it involves the best-interests-of-the-child principal, it is also a space that requires protection and insulation from undue outside influence.

“It is a far stretch to suggest that someone, who out of goodwill and gratitude reaches out and is warm and inviting to another, must then carry the consequences that such conduct may trigger a rights claim on the part of the other.

“This is not tenable and were it allowed it would have a chilling effect on ordinary human relations.”

The judge said the couple had been good parents. 

Regarding QG’s claim that the child needed a father figure, he said the focus should be the environment of love and caring created for the child, not the sexual orientation of its parents.

He dismissed the application with costs.