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 South African law after the mother tried to restrict access to the child.
The dispute was heard this week in the Johannesburg high court 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 toddler. She wants to raise the child with her partner.
The father-to-be attended pre-birth scanning sessions, purchased a stroller, car seat and nappies and was at hospital on the day of delivery. He paid to fly the woman and her partner to meet his extended family in another province.
His response to the legal action was to launch a counterapplication seeking to have parts of the Children’s Act declared unconstitutional.
To protect the identity of the child, the parties cannot be named.
“Being a middle-aged unmarried person, I acted upon my yearning for a family and of becoming a father,” reads the father's affidavit.
“I wanted my child to have both a mother and a father. Having been a child born out of wedlock, it was important to me that my child should have both a mother and a father, even though her parents would not live together or be married to each other. Due to my sexual orientation, I would never marry a woman or copulate with one.”
The solution was to “find a woman who would agree to carry our child and who would co-parent our child with me, living separately”.
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.”
“My intention to become a parent was clearly stated in my profile,” reads his affidavit, stating they had a “verbal co-parenting agreement”. He argued his status as the father was “reflected on the minors’ birth certificate” and he had “acquired full parental rights and responsibilities”.
“I enrolled her in a preschool and paid towards her school feels. I registered her on my medical aid and paid towards her medical expenses. I furnished written consent for her international travels.”
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.
“A sperm ‘contributor’ is someone who hands his sperm to the mother for insertion for the purpose of becoming a co-parent with the mother.
“The problem that I am faced with is that the Children’s Act ... is now being interpreted as prohibiting me from becoming a father of my own offspring and from attaining parental rights and responsibilities regarding my biological and/or genetic offspring.
“The Children’s Act is now being used by [the mother and partner] to mean that (apart from surrogacy) homosexual men cannot become parents of their offspring by employing artificial fertilisation. They take it even one step further, by saying that homosexual women can become parents of the offspring of homosexual men, to the exclusion of the biological fathers, even though they themselves are not the biological mothers of the children.”
This constituted “unfair discrimination”.
“If their application of the Children’s Act is correct, then the state is unfairly discriminating against me, directly or indirectly, based on gender, sex, marital status, sexual orientation, belief and culture,” the affidavit reads.
The women were encouraged by a Constitutional Court ruling that sperm donors have no claim to the child. The mother wants the court to instruct the home affairs minister to remove the father's name from the child’s birth certificate.
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.
“From the outset [we] were however clear in our intention to raise the child on our own without the active involvement of the donor.”
She said the man's online profile indicated he wanted to “donate sperm to an African woman” but from the “outset I made it clear that I am Mediterranean and that I did not intend for the donor to be actively involved in raising the child”. She said he agreed.
“We were open to discuss occasional visits,” the affidavit reads.
“He expressed that he wanted the child to know that he was the donor. He also said that he wanted the child introduced to his family and insisted on making financial contribution to the child’s school fees.”
She said the “conditions” were acceptable to her and partner. “From our understanding, the [man] did not have children of his own and we were happy to share the experience of the pregnancy with [my partner],” the affidavit reads.
The mother explained that putting the father's name on the birth certificate was because he was “genetically her father”.
“The form did not give guidance in completion thereof in a case where the donor sperm had been used and only provided for the details of the mother and the father,” the affidavit reads. “It was never our intention to confer any parental rights and responsibilities onto [him] at that stage.”
The woman said he insisted they apply for both a foreign and a South African passport for the child. He visited frequently after the birth, bringing nappies and gifts but was not “under any obligation”. She became “somewhat irritated by his presence”.
Things changed after they visited his home on Father’s Day to find he had purchased an identical cot to theirs. She said he remarked, “as I have stopped breastfeeding [the baby] his ‘parenting journey could finally start’. It struck us that we may no longer have the same expectations.”
The man’s lawyer, Graeme Krawitz, said: “The presiding judge indicated that the matter should remain confidential.”
The woman’s lawyer, Birgit Beute, said: “ We do not wish to comment as the matter has been argued and judgment is reserved.”
The Centre for Child Law was admitted as a friend of the court. The home affairs minister has indicated that he will abide by the court’s ruling.
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