Legal battle over sperm ‘donors’ and ‘contributors’

A gay man who verbally agreed to provide sperm to a lesbian woman seeking to conceive, believing they would co-parent but live apart, has gone to court in a bid to change the law after the mother tried to restrict access to the child. The dispute was heard last week in the Gauteng High Court (Johannesburg) where the father argued the Children’s Act discriminated against gay men but favoured lesbians when it came to raising children. The mother, from Europe, is seeking a court order declaring him a ‘sperm donor’ with limited windows of contact and no joint decision-making powers over the child. She wants to raise the child with her partner. The Sunday Times reports that the man said he attended pre-birth scanning sessions, purchased a stroller, car seat and nappies and was at hospital on the day of delivery. And he paid to fly the mother and her partner to meet his extended family in another province.

His response to the legal action was to launch a counter-application seeking to have parts of the Children’s Act declared unconstitutional. ‘Being a middle-aged unmarried person, I acted upon my yearning for a family and of becoming a father,’ notes the affidavit. He joined an online service in 2017 in search of a co-parent and met the woman who allegedly said: ‘That’s great, I was hoping to find a Zulu, my partner is Zulu.’ He believes a distinction must be drawn between ‘sperm donors’ and ‘contributors’. ‘I did not donate my sperm, I contributed my sperm in the hope of becoming a parent, just as any other father would be required to ... The only difference between my contribution and that of a heterosexual male lies in the method of insertion,’ the affidavit reads. The Sunday Times reports that the mother’s affidavit says she has a life partner and they wish to raise the child. ‘We initially considered anonymous donors, but after reading an article which concluded that it could potentially negatively affect a child if the child is uncertain of his/her heritage and origin, we decided rather to consider known donors,’ the affidavit reads. The Centre for Child Law was admitted as a friend of the court. Home Affairs Minister Aaron Motsoaledi has indicated that he will abide by the court’s ruling.