When John agreed to donate sperm to assist his friend to become a mother, he thought he was just offering a kind gesture. However, years later, when he wanted to be part of the child’s life, the law didn’t seem to have a clear answer: Was he just a donor or a father with rights and responsibilities?

The landscape of family formation is rapidly evolving in South Africa, with more individuals and couples, particularly LGBTQ+ families and single parents turning to assisted reproductive technologies (ART) to conceive children. Among these, known sperm donation is gaining prominence. Unlike anonymous donation through fertility clinics, known sperm donation involves a donor who is personally known to the recipient. While this route offers relational and emotional benefits, it also raises significant legal questions. Is the donor a father or merely a genetic contributor? What rights and responsibilities do they have? South Africa’s legal framework provides limited guidance, creating a precarious environment for all parties involved.

Legal Framework Governing Sperm Donation

The primary legislation that touches on these issues is the Children’s Act 38 of 2005. The Act regulates aspects of ART, parentage, and the rights and responsibilities of parents and guardians. However, it does not provide explicit provisions dealing with known sperm donors. Section 40 of the Act, which applies to children conceived through artificial fertilization, generally assumes the use of anonymous donors through fertility clinics and provides that the child is regarded as the legitimate child of the recipient parents.

Yet, this assumption becomes complicated when a known donor is involved, particularly in informal arrangements outside of registered fertility clinics. The legal presumption that the donor has no parental rights or obligations becomes less certain. In such cases, courts must navigate between statutory silence and the constitutional imperative to act in the best interests of the child, as required by Section 28(2) of the Constitution of the Republic of South Africa, 1996.

Known Donor Agreements: Enforceability and Limitations

One mechanism increasingly used to clarify roles and responsibilities is the known donor agreement. These are private contracts between the donor and recipient(s) setting out expectations regarding parentage, financial support, contact, and decision-making. However, South African law does not formally recognize or enforce such agreements, particularly where they may conflict with the child’s best interests as outlined in the Constitution and the Children’s Act.

While these agreements can provide a useful framework, they cannot override statutory provisions or the jurisdiction of the high court as the upper guardian of all minor children. In the case of BR v LS 2018 (5) SA 308 (KZD), the court had to decide whether a “known sperm donor agreement” is legally valid. Whilst the Court was not persuaded by the arguments of either party, the Judge remarked that such agreements may be contra bones mores (contrary to good morals).

The Court however granted the donor parental rights and responsibilities, including the right to have contact to the minor child. In deciding this matter, the Court considered the following factors:

• Whether the involvement of the donor prior to, during and after the child’s birth complied with the requirements of section 21 of the Act.

It is trite that in all matters pertaining to a child, the best interests of the child are paramount. In accordance with section 24 of the Act, when an application for guardianship to a child is sought, the Court must consider the following factors:

• The best interests of the child.
• The relationship between the applicant and the child, and any other relevant person and the child; and
• Any other fact that should, in the opinion of the court, be taken into account.

Parental Rights and Responsibilities

In South African law, a biological father may acquire parental rights and responsibilities either automatically (if he was married to the mother at conception or birth), by agreement, or by court order. For known sperm donors, especially those who remain involved in the child’s life, the line between “donor” and “father” becomes blurred.

This ambiguity can lead to legal disputes over custody, maintenance, and guardianship. The Children’s Act empowers the High Court as the upper guardian of all children, and it may grant parental rights and responsibilities to a donor if it is in the child’s best interests. Conversely, it may deny them even if the donor seeks recognition, as evidenced in QG v CS [2021] ZAGPPHC 366, where the court refused to grant a sperm donor parental rights. The court held that while Section 40 of the Children’s Act excludes gamete donors from acquiring parental rights automatically, it does not bar them from applying for contract rights under section 23. However, the Applicants are required to demonstrate a tangible and significant interest in the child’s care, well-being, or developmental beyond the genetic link. it emphasized that all decisions must serve the child’s best interests and dismissed the donor’s application due to insufficient demonstrable connection.

Kollapen J in QG v CS [2021] ZAGPPHC 366that both Section 40 and Section 26(2)(b) of the Children’s Act establish that gamete donors (excluding spouses) are not legally recognized as parents of children conceived using their genetic material. The genetic connection does not give them parental rights or responsibilities.

In both the above provisions above, the legislature explicitly and deliberately removes any claim to parenthood by the donor. Instead, it recognizes as parents only those who intended to raise the child. Donors relinquish all associated rights and responsibilities when they donate.

This legal certainty is considered crucial to the functioning of the artificial reproduction system in South Africa. Without this clarity:

• Donors might be discouraged from donating.
• Recipients might fear legal complications.
• The broader goal of treating infertility would be undermined.

Comparative Perspectives

Internationally, countries like the UK and Australia have developed more structured approaches. In the UK, for example, the Human Fertilisation and Embryology Act 2008 stipulates that sperm donors are not legal fathers if conception occurs through a licensed clinic. In Australia, the law varies by state, but all jurisdictions, a known sperm donor generally does not have legal or financial obligations to a child conceived through their donation, unless they are deemed to be a legal parent by a court. The legal presumption is that the child is of the parent of the recipient(s) who register the birth.

In Re Patrick [2002] FamCA 193 Guest J held that the sperm donor was permitted contact with the child to the extent that this was in the child’s best interests. Guest J did, however, held that due to the way particular provisions of Australia’s Family Law Act 1975 are drafted, a sperm donor cannot be regarded as the ‘parent’ of the child.

South Africa lacks a similarly robust legal infrastructure, resulting in inconsistent and unpredictable outcomes for families who rely on known donors.

Risks and Legal Uncertainty Without clear legal protections, known sperm donation in South Africa remains fraught with risk. Donors may find themselves unexpectedly liable for child maintenance. Recipients may face custody claims or interference from donors. Most importantly, children may suffer from a lack of legal clarity regarding their parentage, identity, and stability.

Recommendations for Reform

To address these legal gaps, South Africa should consider:

• Amending the Children’s Act to include provisions specific to known sperm donation;
• Providing for the legal recognition of known donor agreements, subject to judicial oversight;
• Clarifying when and how a known donor may acquire or be excluded from parental rights;
• Ensuring that all reforms are grounded in the constitutional principle of the child’s best interests.

Conclusion

The question of whether a known sperm donor is a father or simply a donor is not merely semantic, it has profound implications for the lives of children and families. In the absence of legislative clarity, the courts have been left to interpret complex and often contradictory principles. Legal reform is urgently needed to provide certainty, protect children, and support diverse pathways to parenthood in South Africa.

References

• Children’s Act 38 of 2005
• Constitution of the Republic of South Africa, 1996
• BR v LS 2018 (5) SA 308 (KZD),
• QG v CS [2021] ZAGPPHC 366
• Human Fertilisation and Embryology Act 2008 (UK)
• National Health and Medical Research Council’s guidelines (Australia)

Written by President Sambo – Senior Partner at Sambo & Makgabutlane Attorneys

NB: This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the current legal standing as at the time of writing and would change in accordance with any change in the law. We recommend that you contact Sambo & Makgabutlane Attorneys atadmin@sandmlaw.co.za directly for advice applicable to your specific matter.