Win for gay sperm donor

Judge gives man access to daughter who is being raised by lesbian couple

● In a victory for unconventional families, a gay sperm donor has found solace in being granted permission to see his daughter after a prolonged legal battle with a lesbian couple to secure his parental rights.

The man had been embroiled in a bitter wrangle since 2019 with the child’s mother, who is in a life partnership with another woman. He provided sperm for the mother to conceive, believing they would co-parent but live apart.

But the lesbian couple wanted to raise the child as their own and tried to restrict his access. The high court in Johannesburg handed down the judgment on Wednesday.

The mother, who is from Europe, conceived in 2018 through artificial insemination after hunting for a donor who satisfied “specific ethnic requirements” on a platform that connects people who wish to co-parent or become sperm donors.

The women opted to find a known rather than anonymous donor because they were concerned the child would be negatively affected if uncertain about their heritage and origin.

The man, who is Zulu, initially ticked the right boxes and was involved in check-up visits to the gynaecologist during the pregnancy — having been introduced as the “father of the unborn child”.

By agreement he chose the girl’s second name. She also bears his and the mother’s surnames.

“The women said they had agreed the child would be told, at the right time, he was the ‘sperm donor’, but in his version of events they agreed he would be introduced as the “father” and ‘make a financial contribution towards the child’s school fees’.

The couple visited the man’s family in another province at his expense. Eight months into the pregnancy he purchased a stroller, car seat and diapers, which the couple accepted. He waited outside the theatre for eight hours for the birth. The child was introduced to his family and placed on his medical aid.

Tensions flared in August 2019 when the couple said they planned to raise the child but he wanted to retain full parental rights and responsibilities.

“[The man] says that the fact that the platform [where they met] is designated ‘co-parenting-match’, as well as his profile on the platform is evidence that he was always only interested in providing his sperm for purposes of becoming a co-parent,” reads the judgment.

But the women insisted they made it clear from the outset they were “not interested in sharing parenthood with whoever assisted them in their endeavours to become parents by donating his sperm”.

The man and the mother enlisted the services of social workers to deal with the impasse. When she asked him for permission to travel with the child overseas — necessary as he was listed as the father on the child’s birth certificate — he replied with an ultimatum: “I am not going to get the affidavit done without resolving the parenting plan.”

The mother turned to the courts in late 2018, hoping to secure an order compelling him to consent to the overseas trip. A protracted legal battle ensued and the Family Advocate entered the fray.

The mother sought an order declaring, among other things, that the man be regarded as a ‘sperm donor’, his name be removed from the birth certificate and he be afforded no responsibility or duty to continue maintaining the child.

In response, he argued for “parental rights and responsibilities”.

Judge Bashier Vally ruled this week that he be regarded as a “gamete donor” but granted him access to the child at various times. Vally ruled that “no co-parenting agreement was reached between them”.

“He has shown a commitment toward [the child],” Vally said. “The commitment commenced pre-birth and continued for a few months after birth. The commitment shown was undoubtedly genuine. He has contributed financially towards her expenses and to this day still does.”

Vally said the man “certainly qualifies to be granted contact with the child in these circumstances”.

Until the minor reaches six years old, he will spend two hours with her every first Tuesday of the month at the couple’s residence but forfeit access when she is on holiday.

“[The couple] shall inform [him] two weeks in advance of any travel within the country and one month in advance of any travel abroad,” the judgment reads.

When the child turns six, the contact time increases to four hours on the second weekend of every month at a venue agreed upon by the partners.

He will also be allowed to meet his daughter every Father’s Day for four hours.

Vally ruled that the couple be regarded as the child’s parents with “full parental rights and responsibilities” and that the mother did not need his consent to travel “temporarily overseas” with the girl.

“The [man] is ordered to grant his consent timeously for any application for a renewal of [the child’s] passport,” Vally ruled.

“The matter is referred to the maintenance court to determine the amount of maintenance [he] is to pay towards [the child’s] living and travelling expenses.”

Judge Vally was scathing in an assessment of how regulations on artificial fertilisation in South Africa were flouted in this instance, excluding various screening processes and without the assistance of qualified medical practitioners.

“The parties here chose to go the self-help route. The fertilisation was conducted at [the mother’s home] by her partner, not competent to artificially fertilise another person”.

“They acted with total disregard for the law. Had they acted more prudently, perhaps the problems they encountered later, which resulted in this litigation, could have been foreseen and prevented,” said the judge.

The man welcomed the ruling.

“My client is delighted with the judgment. He is happy and pleased to be a part of his child’s life. My client feels vindicated. The ruling was in the best interests of the child,” said his lawyer Graeme Krawitz.

The mother’s lawyer Bergit Beute said: “We prefer not to comment.”

• The parties are not being named to protect the identity of the minor child.