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Update on Sperm Donor’s Battle to See “His Child”

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Published Date: April 15, 2021

Women are increasingly using sperm donors to get pregnant, either because they are in a same-sex relationship or because they are single but yearn to be a mother. The burning question that’s increasingly being posed, is whether the men whose sperm is used are dads or merely donors.

It is this question being grappled with by Judge Jody Kollapen after she reserved judgement in the Pretoria High Court yesterday in a case in which a man who donated sperm to a same-sex couple in May 2015, asked the court for legal access to his son.

Neither he nor the respondents may be named to protect the identity of the child involved.

Shani van Niekerk, a senior associate at Adams & Adams Attorneys, who is representing the applicant, says the case is making legal history. “We have done considerable research both nationally and internationally and cannot find another case with similar facts,” she says.

Court records detail the journey that led to the legal stand-off.

Rather than go through a sperm bank, the women found the Gauteng donor they used after placing a social media advert. A sperm donor agreement was signed, in which the man agreed to not have contact with the child and to abdicate his rights to the child.

The fertilisation was successful, but instead of all parties sticking to the agreement, the donor and his mother, the child’s paternal grandmother, became close friends of the family.

Court documents show how the man, who is homosexual and never expected to become a father, suddenly experienced a love he could never imagine for the child.

In his court application, he alleges that he and his mother became actively involved in the life and upbringing of the child, a claim that has been denied by the women.

In early 2020, they cut all ties with the donor and his mother, refusing them any contact with the child.

“The matter raises important constitutional issues regarding the rights of children born by gamete donation, as well as the adults involved. The man and his mother approached the Pretoria High Court in terms of the Children’s Act, asking that they be granted parental rights and responsibilities over the minor child. The couple is opposing the application,” says Van Niekerk.

“The case is expected to draw wide interest, considering the issues to be decided and the important role played by the parties’ experienced legal teams in submitting arguments to the judge.
“The applicant approached the 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.

“He is not asking to replace the couple but to be granted the right to have contact with the child,” says Van Niekerk.

“I do not believe this case will open the floodgates when it comes to donors and the children who resulted from their donation. This case has its own circumstances and any subsequent cases will be heard on their own merit,” she adds.

Van Niekerk is being assisted by Senior Advocate LC Haupt, while Donrich Thaldar, an advocate and professor of human rights law at the University of KwaZulu-Natal, has applied to join the proceedings as a friend of the court. The respondents are represented by Gerbrand Gildenhuys of Cilliers & Gildenhuys Attorneys, who is assisted by Advocate Calyn D’Alton.

A new court date has not yet been set.

This article originally appeared on

Shani van Niekerk
Senior Associate | Attorney

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