Are Known Sperm Donor Agreements Worth the Paper they are Printed On? Recent High Court Judgment Suggests they are Not as Secure as People Think

Making use of sperm donors is a necessary step for many people who want a child but cannot do so without medical assistance. However, the cost of using an anonymous sperm donor from a sperm bank – which can reach more than R10 000 – in addition to the high cost of fertility treatment, often makes this unaffordable. Thus, some people make an agreement with people they know to donate their sperm to them.

Arrangements of this kind, commonly referred to as “known donor agreements” have become increasingly common in South Africa. However, their legal status is uncertain, as our law does not explicitly provide for them. This can have dire consequences when disputes arise. The recent case of QG v CS which came before the Pretoria High Court is a sobering example.

This case came about because a lesbian couple who wanted a child but sought to avoid the costs associated with sperm donation, resorted to using social media to recruit a donor. A man (called “Q” in the court judgment to conceal his identity) expressed interest after coming across a post on Facebook. After meeting and discussing the arrangement, the couple agreed that Q would be the donor. The three of them went to a fertility clinic, where Q’s sperm was used to inseminate one of the women, resulting in the birth of a boy child (referred to as “child L”).

Q initially said that he had no interest in being intimately involved in raising child L. However, as he spent more time with L, Q had a change of heart, and wanted to play a bigger role in the child’s life. This caused conflict between Q and child L’s legal parents (the lesbian couple), which led to the couple deciding they no longer wanted Q to be a part of child L’s life. Q then approached the courts hoping to acquire parental rights and responsibilities in respect of child L.

The couple opposed Q’s application, given that he was legally just a sperm donor, meaning that he had waivered any claim to parental rights and responsibilities that normally accrue to a biological parent, and this was recorded in the contract he had signed. However, Q’s application was not based on his status as child L’s biological father. Rather, it relied on Section 23 of the Children’s Act, which provides that any person that has an “interest” in the care, well-being or development of a child may approach the High Court and make a case to be awarded parental rights and responsibilities in respect of such child.

In its judgment, the High Court paid little attention to the written agreement between the parties. And for good reason, because the Constitution provides that in all matters concerning children, the best interests of the child are paramount. This places a duty on the courts to always put the best interests of the child first – irrespective of any agreement between the parties. Because of this, the central issue was not what the parties had agreed, but rather whether Q playing the role of a parent in child L’s life was in the child’s best interests.

Ultimately, Q’s application was unsuccessful, because the court held that he had not spent enough time with child L, nor had he developed a close enough relationship with the child, to justify making him a permanent part of Q’s life against the legal parents’ wishes. It is important to note, however, that the court made it clear that neither Q’s status as a sperm donor, nor the known donor agreement, were absolute bars to a person bringing an application in terms of Section 23 of the Children’s Act. In other words, had the facts been different, and there was indeed a long-standing and close relationship between Q and child L, the court may well have ruled in Q’s favour. Indeed, Q might still prevail, given he is applying for leave to appeal.

This judgment serves to illustrate that while known donor agreements are convenient, they come with certain risks. Their legal status is uncertain, and if disputes arise, the courts may elect to ignore such an agreement. Therefore, people contemplating entering into these agreements ought to be very careful about who they involve in their intimate family life, as this involvement may end up being more permanent than they planned.

Dr Donrich Thaldar is an Associate Professor at the School of Law at UKZN and Mr Bonginkosi Shozi is a Doctoral Fellow with the African Health Research Flagship at UKZN.

*The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the University of KwaZulu-Natal.

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