Sperm Donor’s Battle to See “His Child”

In May 2015, a Gauteng man donated sperm to a same sex couple in terms of a sperm donor agreement. In terms of the agreement, the man agreed that he would neither make contact with, nor would he be entitled to any rights to the child to be born from the donation.

The fertilization was successful, to the great joy of all three parties involved. After the child was born, an unusual situation arose. Instead of the man never either seeing the child or being involved in his life, the donor and his mother, the paternal grandmother of the child, became close friends with the newly established family, and through their friendship with the Respondents, a not unexpected bond developed between them and the child. The man who never expected to become a father himself, having regard to his own sexual orientation, suddenly experienced a love he could never imagine for the child. The donor alleges that he and his mother became actively involved in the life and upbringing of the child, a fact which the couple denies. However, in early 2020, some four years hence, the couple cut all ties with the man and his mother–refusing any contact or involvement 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 have approached the Pretoria High Court in terms of the Children’s Act for an order that they be granted parental rights and responsibilities over the minor child. The couple is opposing the application.

The matter is expected to draw wide interest, considering the issues to be decided and the important role to be played by the parties experienced legal teams in submitting arguments to the judge hearing the matter. Mrs. Shani van Niekerk (Senior Associate at Adams & Adams Attorneys), assisted by Adv. L.C. Haupt SC and Adv. B. Bergenthuin, are representing and acting for the applicants. Professor Donrich Thaldar (Advocate and Professor of Human Rights Law at UKZN), have applied to join the proceedings as amicus curiae (‘friend of the court’). The respondents are represented by Mr Gerbrand Gildenhuys (Cilliers & Gildenhuys Attorneys), assisted by Adv. C. D’Alton

The High Court (Pretoria) is set to hear the matter in mid-April.

*For the safety, welfare and best interests of the minor child, the identities of the parties must remain anonymous and the legal teams cannot give comments whilst the matter is sub- judice.

Shani van Niekerk
Senior Associate | Attorney
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