A judge has ruled that a Gauteng gay man who donated sperm to a lesbian couple to conceive a child should not be granted access to the boy in order to protect the integrity of the family.
In 2015, after responding to an ad on Facebook, the man, an interior decorator, signed an agreement to donate sperm to the couple. He agreed that neither he nor his relatives would make contact with nor be entitled to any rights to the child born from the donation.
After the boy was born, however, the man was allowed to meet the child and he and his mother continued to have some contact with the boy over a period of around four years.
“From the first moment I held [the child] in my arms, I felt a bond with him,” said the man in an affidavit. “At the hospital, where I first saw [him], I realised that I was not psychologically prepared for the impact which his birth shall have on me and that I was naïve to think that I can simply make an altruistic donation and not have the need to be in the child’s life.”
In early 2020, after their relationship with the donor became strained and hostile, the couple cut ties with the man and his mother, refusing them any contact or involvement with the child.
The man, who is in a long term relationship, and his mother applied to the Pretoria High Court in a bid to be given access to the boy on alternate weekends and some holidays. They also questioned the women’s parenting.
Judge Jody Kollapen, however, has denied the donor’s application citing the best interests of the child.
She said that it was vitally important to maintain the legal certainty of the law that “clearly and deliberately excludes gamete donors from having any claim to parenthood of the donor-conceived child.”
Otherwise, said Judge Kollapen “donors would not be willing to donate, recipients would not be willing to accept donations, and infertility would become an unsolvable burden.”
She argued that just because the mothers had out of goodwill allowed the man and his mother to see the child on limited occasions does not mean that they “must then carry the consequence” and “trigger a rights claim…”
Judge Kollapen said it was unfortunate that the man attempted to cast doubt on the parenting abilities of the women, adding that they “have by all accounts done a good job thus far.”
Due to their relatively limited and intermittent contact, she rejected the man’s claim that he and the child had formed a deep bond. She also refuted his argument that the boy needs a father figure in his life as an intrinsically heteronormative one.
“It is inconceivable how in a society that is committed to the eradication of discrimination on the basis of sexual orientation, concepts such as a father figure can be used to cast doubt on the appropriateness of a lesbian couple to be parents of a child. Ultimately it must be about the environment of love and caring that is created for a growing child and not the sexual orientation of its parents,” wrote Judge Kollapen in her judgement.
Ultimately, she believes that allowing the child to have contact with the man and his mother, after 18 months of not having contact, will not be in his best interests and “if anything, it may well cause confusion, create new, alternate and possibly conflicting centers of focus in his young life.”
Judge Kollape said that while blocking the man and his mother from the child’s life “may appear to be harsh, it is ultimately what is needed to respect and protect the intention and the choice of the respondents in constituting their family and being able to live as a family in the best manner they see fit.”
She added that the family is “deserving of constitutional protection from outside interference” even if the man and his mother are well-meaning. The applicants were ordered to pay the couple’s costs in the case.