In a landmark case, a court battle is looming between a gay man and a same-sex couple over access to the young boy that he helped conceive as a sperm donor.
In May 2015, after responding to an ad on social media, the Gauteng man donated sperm to the same-sex couple according to 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 fertilisation was successful. But 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 couple, and a bond developed between them and the child.
According to a statement by Adams & Adams Attorneys, the man – who never expected to become a father himself due 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 after the boy’s birth, the couple allegedly cut all ties with the man and his mother, refusing them any contact or involvement with the child.
The man and his mother have now 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 raises important constitutional issues regarding the rights of children born by gamete donation, as well as the adults involved,” said Adams & Adams Attorneys, which is representing the donor.
The High Court in Pretoria is set to hear the matter next week. “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,” said the law firm.